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2021 DIGILAW 298 (GAU)

Moina Ahmed v. State Of Assam

2021-03-19

MIR ALFAZ ALI, SUMAN SHYAM

body2021
JUDGMENT M A Ali, J. - Learned Counsel, Mr.S.B.Rahman appearing for the appellant and learned Addl. Public Prosecutor, Ms. B. Bhuyan for the State/respondent were heard. 2. This appeal is directed against the judgment and order dated 28-08-2018 rendered by the learned Sessions Judge, Karbi Anglong, in Sessions Case No. 66/2000, whereby, the present appellant was convicted u/s 302/341 IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.2,000/- with default clause u/s 302 IPC and to suffer rigorous imprisonment for another one month u/s 341 IPC. 3. The prosecution case in a nutshell was that on 09-03-1996, at about 10 PM, when Sukur Ali, son of the informant, was coming home on a motorbike with Ram Chandan Sahani (deceased), the accused Badal Ahmed stopped him on the way and had some discussion with him. In the meantime, the accused Jakub, Moina and Akonman Ahmed arrived there and all the four accused persons mounted assault on Sukur Ali and Ram Chandan with bamboo and wooden sticks, causing grievous injuries on the head of Ram Chandan Sahani, who died at the spot. The accused persons also inflicted grievous injuries to Sukur Ali. A written report was lodged by the mother of Sukur Ali, on the following day at 10 AM. Treating the said written report as FIR, police registered Bokajan PS Case No.39/1996 u/s 341/325/302/307/34 IPC and upon completion of the investigation submitted charge-sheet against all the four accused persons including the present appellant. One of the co-accused Akon Ahmed expired before commencement of the trial and the rest including the appellant stood trial. 4. During the course of trial, learned trial court framed charges against the remaining three accused persons including the present appellant u/s 302/341/323 read with Section 34 of the Indian Penal Code, to which, all of them pleaded not guilty. During trial, the co-accused Jakub Ahmed expired and ultimately the trial continued against the present appellant and Badal Ahmed. In order to substantiate the charges, prosecution examined 6 witnesses including the doctor and the investigating officer. The accused persons were also examined u/s 313 CrPC. During their examination u/s 313 CrPC both the accused persons took the plea of innocence however, did not adduce any defence evidence. 5. The informant, Nurjahan Begum was examined as PW-3. In order to substantiate the charges, prosecution examined 6 witnesses including the doctor and the investigating officer. The accused persons were also examined u/s 313 CrPC. During their examination u/s 313 CrPC both the accused persons took the plea of innocence however, did not adduce any defence evidence. 5. The informant, Nurjahan Begum was examined as PW-3. She stated in her deposition, that hearing hue and cry she rushed to the place of occurrence and had seen the accused persons attacking her son Sukur Ali. When Ram Chandan Sahani (deceased), who was accompanying Sukur Ali moved forward to resist the assault, the accused persons assaulted him too, with bamboo and other weapons. Having sustained injury, Ram Chandan Sahani died at the spot. She also stated that all the accused persons pierced a bamboo pole into the neck of the deceased. During cross-examination of this witness, it was elicited, that her son Sukur Ali was arrested twice in connection with the cases involving contraband drugs. She also stated, that in course of the quarrel, the accused Badal asked the other accused persons not to get involved in "marpit"(assault). 6. Pw-4, Rahima Begum deposed, that having heard commotion in front of her house, she came out and had seen the deceased Ram Chandan Sahani coming towards their house accompanied with Sukur Ali. She further stated that accused Badal and Jakub started altercation with Sukur Ali and the deceased Ram Chandan Sahani and following the altercation, they also started assaulting the deceased and her brother (Sukur). Having seen the quarrel, she immediately proceeded to the police station and informed the police about the occurrence. While coming back from the police station, she found Ram Chandan Sahani lying dead on their gateway. She also stated that according to her, when she came back from the police station, the accused Moina Ahmed came there and enquired about Sukur Ali. During cross-examination, she stated in an unambiguous term that she did not witness as to who killed the deceased Ram Chandan Sahani. She also admitted in cross-examination that Sukur Ali was in jail in connection with NDPS case. 7. Jamir Ali (PW-1) testified that having heard "hullah" he came out of the house and noticed that a quarrel ensued between Sukur Ali and Ram Chandan Sahani. Immediately he went to the police station and informed about the quarrel. She also admitted in cross-examination that Sukur Ali was in jail in connection with NDPS case. 7. Jamir Ali (PW-1) testified that having heard "hullah" he came out of the house and noticed that a quarrel ensued between Sukur Ali and Ram Chandan Sahani. Immediately he went to the police station and informed about the quarrel. While coming back from the police station, he found Ram Chandan Sahani dead and Sukur Ali lying in injured state at the place of occurrence. This witness was however, declared hostile by the prosecution. 8. Pw-2, Momtaz Begum did not have any personal knowledge about the occurrence. 9. Pw-5, Dr. Sanjib Kr. Borthakur, who conducted autopsy of the body of the deceased found the following injuries :- "(i) longitudinal fracture involving frontal, parietal and occipital bone about 10 cm length exposing the brain matter on the left side of the head. (ii) secondary injury on the right side of the head above posterior right ear covering main occipital bone longitudinal 6 cm exposing brain matter. (iii) oblique abrasion on the neck." The doctor opined "that death was due to shock and hemorrhage, as a result of head injuries and all the injuries were ante mortem". 10. Pw-6, the investigating officer stated that on the basis of oral information, received from PW-4, Rahima Begum, an entry in the general diary, being GD Entry No.180 was made and he was entrusted with the task of preliminary investigation. Having been entrusted with the preliminary investigation, he visited the place of occurrence, sent the body for post mortem examination, prepared a sketch map and examined the witnesses found available at the place of occurrence. On the next day the formal FIR (Ext.-6) was lodged by PW-3 and after completing the investigation, he submitted the charge-sheet. 11. Taking note of the above evidence, learned trial court acquitted the co-accused Badal and convicted the appellant and awarded sentence as indicated above. 12. On the next day the formal FIR (Ext.-6) was lodged by PW-3 and after completing the investigation, he submitted the charge-sheet. 11. Taking note of the above evidence, learned trial court acquitted the co-accused Badal and convicted the appellant and awarded sentence as indicated above. 12. Assailing the impugned judgment, learned counsel for the appellant submitted, that in view of clear finding recorded by the learned trial court, that there was no evidence of common intention of all the accused persons to commit the offence and acquitting the coaccused Badal Ahmed, based on such findings, the present appellant could not have been convicted u/s 302 IPC, on the basis of the same set of evidence, inasmuch as, no specific evidence was brought on record to establish that the fatal blow causing death of the deceased was given by the present appellant. 13. Learned Addl. Public Prosecutor would submit, that absence of overt act or participation, on the part of a particular accused would not absolve him of the liability, if sharing of common intention by all the accused persons to commit the offence is proved. 14. We have considered the submission made by the learned counsel for both the sides and also carefully perused the record including the evidence as well as the impugned judgment. 15. Upon perusal of the impugned judgment we find, that the learned trial court ruled out the existence of common intention of all the accused persons to commit the offence and thereby acquitted the co-accused Badal Ahmed and convicted the present appellant alone primarily relying on the oral testimony of PW-3 & PW-4, who were the eye witnesses to the occurrence. Learned trial court observed in the operating part of the judgment as under :- "15. I have very carefully gone through the aforesaid case laws cited above. There is no evidence on record showing that there was plan or meeting of minds of all the accused persons facing trial to commit the offence for which they have been charged with the aid of Section 34 before the occurrence or on the spur of the moment. There was a doubt that the accused Md. Badal Ahmed took part in assaulting the deceased and the injured Sukur Ali. I find nothing on record to disbelieve evidence of PW-3 and PW-4 regarding involvement of the accused Md. Moina Ahmed in the alleged occurrence. 16. There was a doubt that the accused Md. Badal Ahmed took part in assaulting the deceased and the injured Sukur Ali. I find nothing on record to disbelieve evidence of PW-3 and PW-4 regarding involvement of the accused Md. Moina Ahmed in the alleged occurrence. 16. In the result, I find that the prosecution has failed to prove its case against the accused person Md. Badal Ahmed beyond all reasonable doubts. Hence on benefit of doubts the accused person Md. Badal Ahmed is hereby acquitted from the charges brought against him and let him set at liberty forthwith. The bail bond executed in his favour shall stand cancelled after 6 (six) months." 16. On our assessment of the evidence we also find, that the prosecution case is banking primarily on the oral testimony of PW-3 & PW-4 as well a medical evidence of PW-5. The PW3 testified, that all the accused persons initially attacked Sukur Ali and when the deceased Ram Chandan Sahani tried to resist the accused persons from assaulting Sukur Ali, he was also assaulted by the accused persons by bamboo stick and other weapons. She also stated that all the accused persons pierced a bamboo pole into the neck of the deceased. During cross-examination, this witness stated in unambiguous term, that in course of the quarrel accused Badal asked the other accused persons not to be involved in "marpit"(assault). What is therefore, discernible from the oral testimony of this witness is that when Sukur Ali and the deceased Ram Chandan were coming together, the accused persons attacked only Sukur Ali. When the deceased tried to resist the accused persons from assaulting Sukur Ali, then only Ram Chandan was assaulted. 17. Though the PW-4 admittedly did not witness the entire incident, she had seen the first part of the occurrence, inasmuch as, her testimony was to the effect, that accused Jakub and Badal picked up quarrel with Sukur Ali and they also assaulted Sukur Ali, whereupon she rushed to the police station to inform the police about the occurrence. She further stated that while coming back, she found the deceased Ram Chandan lying dead. She also stated that when she came back to the place of occurrence, accused Moina came and enquired about Sukur. Thus, according to PW-4, she had seen only accused Jakub and Badal altercating with Sukur, who also assaulted Sukur. She further stated that while coming back, she found the deceased Ram Chandan lying dead. She also stated that when she came back to the place of occurrence, accused Moina came and enquired about Sukur. Thus, according to PW-4, she had seen only accused Jakub and Badal altercating with Sukur, who also assaulted Sukur. Though, she stated, that after the occurrence, the accused Moina came there and enquired about Sukur, such testimony of PW-4, that Moina came later, to enquire about the incident after the death of Ram Chandan, appears to be absurd and unnatural for being contrary to the normal human conduct, inasmuch as, it can hardly be expected that a person, after committing the offence would come back again to the scene of occurrence merely to expose himself. Be that as it may, admittedly PW-4 did not see the accused Moina or any other accused assaulting the deceased, nor did she ascribe any act or role to the appellant Moina constituting the offence, for which charge was framed. Therefore, the testimony of the PW-3 stood contradicted with the testimony of the PW-4 in respect of presence and participation of the appellant Moina, inasmuch as, according to PW-3, four persons including Moina initially attacked Sukur Ali and assaulted him. Whereas, PW-4 deposed that only Badal and Jakub assaulted Sukur and according to him, appellant Moina was not even present at the scene of occurrence when Sukur Ali was assaulted. 18. True it is, common intention can develop at the spur of the moment or at the scene of crime. But we do not find an iota of evidence to that effect. Rather, the testimony of PW-3, the eye witness, that one of the accused was asking the others not to be involved in the assault, and that accused persons initially assaulted Sukur Ali and when the deceased came forward to protect Sukur Ali, he (deceased) was also assaulted, as well as the medical evidence showing that only a single blow was given, clearly suggested, that in all probability, any one, of the accused persons participating in the assault of Sukur Ali, might have dealt the blow to the victim at the spur of the moment without any common intention. Moreover, in view of contradictory and mutually destructive evidence of the PW-3 & PW-4, participation of the accused Moina, or even his presence itself was doubtful, inasmuch as, according to PW-4, when the occurrence started Moina was not present at the scene of occurrence and he came later and enquired about Sukur. 19. The Supreme Court in Chandrakant Murgyappa Umrani -Vs.- State of Madhya Pradesh, (1999) AIR SC 1557 held that before a man can be held liable for the acts done by another, under the provision of Section 34 IPC, it must be established that (i) there was common intention in the sense of pre-arranged plan between the two and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless both common intention and participation are present, Section 34 IPC shall not apply. What is evident from the oral testimony of the PW-3 & PW-4 is that the prosecution evidence even falls short of establishing the presence and participation of the present appellant in the commission of offence beyond reasonable doubt. Therefore, the evidence brought on record, in our considered opinion, was grossly inadequate to establish beyond doubt that the appellant shared any common intention with the co-accused to assault the deceased, so as to invoke the Section 34 of the IPC. Situated thus, we find no cogent reason to disagree with the finding of the learned Sessions Judge the appellant did not share any common intention with the other co-accused for invoking the provision of Section 34 IPC. 20. Once common intention or for that matter application of Section 34 IPC is ruled out, accused persons participating in the offence would be liable on the basis of the individual act of each of them or on the basis of the specific act attributable to each one of the accused, who participated in the offence. Though the learned Sessions Judge observed, that the evidence of PW-3 & PW-4 established the involvement of Moina in the commission of offence, learned Sessions Judge has not elaborated in the judgment as to what was/were the act/acts attributable to the present appellant for holding him liable for causing death of the deceased. The post mortem report (Ext.1) and the testimony of the PW-5, Dr. Sanjib Kr. The post mortem report (Ext.1) and the testimony of the PW-5, Dr. Sanjib Kr. Borthakur, who conducted the autopsy clearly demonstrated that only a single blow was given, inasmuch as, there was basically one injury on the left side of the head and the other injury on the right side of the head was the secondary injury, being the effect of first injury on the left side of the head. The medical evidence was silent as to whether the injury was inflicted by a blunt or sharp weapon. Though, PW-3 made an omnibus statement in his testimony, that all the accused persons pierced a bamboo pole into the neck of the deceased, no such injury was found on the neck of the deceased. 21. What was abundantly clear from the medical evidence is that only a single blow was given on the head of the deceased, which became fatal. However, no specific evidence was brought on record to show, as to who dealt the fatal blow, except the omnibus statement falling from the mouth of PW-3, that all the accused persons pierced the bamboo pole into the neck of the deceased, which is evidently contrary to the medical evidence as well as the inquest report. We are aware, that in case of conflict between the medical evidence and the eye witness' account, medical evidence does not necessarily supercede the oral testimony. If the oral testimony is found to be credible and trustworthy, there is no difficulty in discarding the medical evidence being an opinion evidence. However, in the facts and circumstances of the present case, more particularly, the nature of the oral testimony of PW-3, which suffer from inherent improbability as well as the evidence of PW-4, which contradicted the PW-3 on material facts, we find no reason to discard the medical evidence. 22. What therefore, crystallizes from the prosecution evidence is that only a single blow was given, which caused the death of the deceased and the prosecution has not been able to bring on record any reliable evidence to show, that the fatal blow was given by the present appellant. In other words, the crucial facts as to who, out of the four accused persons charged for causing death of the deceased, dealt the fatal blow to deceased Ram Chandan Sahani remained shrouded in doubt. In other words, the crucial facts as to who, out of the four accused persons charged for causing death of the deceased, dealt the fatal blow to deceased Ram Chandan Sahani remained shrouded in doubt. Therefore, in our considered opinion, the prosecution evidence falls short of proving the charge u/s 302 IPC against the appellant Moina beyond reasonable doubt, and as such, he was at least entitled to the benefit of doubt. Accordingly, we set aside the conviction and sentence of the appellant Moina and allow the appeal. 23. The appellant be set at liberty forthwith, if not required in any other case. 24. The appeal stands allowed. 25. Send back the LCR.