High Court
Case Details
Crl.A. 211/2012 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE MR JUSTICE P K MUSAHARY JUDGMENT & ORDER (Ansari,J) This is an appeal against the judgement and order, dated 11.09.2012, pas sed, in Sessions Case No. 153(N)/2002, by the learned Additional Sessions Judge, Nagaon, convicting as many as 7 (seven) persons under Sections 302 read with Se ction 34 IPC and sentencing each of them to suffer imprisonment for life and fin e of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonmen t for another 3 (three) months. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) On 14.06.2002, at about 10-00 A.M., as many as seven persons, namely , Jahirruddin, Wahed Ali @ Ohed Ali, Hasen Ali, Kapiluddin, Syed Ali, Hussain Al i, and Jamaluddin, chased Abdul Rahman from Tiniali Bazaar to the bank of the wa ter tank of one Govinda Bora, all of them, then, assaulted Abdul Rahman by vario us deadly weapons, such as, Khukri, dao, etc., and killed him. Following the oc currence, an information was given, at Itapara Police Outpost, which falls under Nagaon Police Station. On receiving the information, police personnel from the said police outpost went to the place of occurrence and found the dead body of Abdul Rahman lying there. (ii) The Investigating Officer (PW8), on receiving the information fr om Nagaon Police Station, that a murder had taken place within his territorial j urisdiction, went to Itapara Police Outpost and, at the said Police Outpost, he, having come to learn that his staff had already gone to the place of occurrence , he, too, went to the place of occurrence, drew sketch map of the place of occu rrence and seized various weapons. Inquest was held over the said dead body by an Executive Magistrate and, then, the dead body was subjected to post mortem ex amination on the day of the occurrence itself, i.e., on 14.06.2002. (iii)
Legal Reasoning
PW1 (Musstt Hanufa Khatun), widow of the said deceased, lodged a written Ejahar with the i/c, Itapara Police Out Post, on 14.06.2002, and, treat ing the said Ejahar as First Information Report (in short, ’FIR’), Nagaon Police Station Case No. 370/02 came to be registered, under Section 302 read with Sect ion 34 IPC, against the said seven accused persons, who had been so named in the Ejahar. On completion of investigation, police laid a charge sheet, under Sect ion 302 read with Section 34 IPC, against the accused aforementioned. 3. At the trial, when a charge, under Section 302 read with Section 34 IPC, was framed against the accused persons, all the accused pleaded not guilty ther eto. 4. In support of their case, prosecution examined altogether 8 (eight) witn esses. The accused were, then, examined under Section 313 CrPC and, in their exa minations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that the accused had been implicated, because of previous animosity, though they were wholly innocent. As far as accused Wahed Ali is concerned, he took the plea of alibi and, in support of this his plea, he adduced evidence by examining himsel f and two more witnesses. 5. Having, however, found all the accused guilty of the offence, which they stood charged with, the learned trial Court convicted them accordingly and pass ed sentence against them as mentioned above. Aggrieved by their conviction and the sentence, which has been passed against them, the present two appellants, na mely, Hasen Ali and Hussain Ali, have preferred this appeal along with two other convicted persons, namely, accused Jahiruddin and Jamaluddin. 6. While the present appeal was pending, an application was made by accused Jahiruddin and accused Jamaluddin claiming that they were, at the time of the o ccurrence, juvenile. The said application gave rise to Crl. Misc. Case No. 834/ 2012. An enquiry was, then, ordered by this Court to be held by the learned Ses sions Judge, Nagaon, on the question of juvenility of the said two accused-appel lants, namely, Jahiruddin and Jamaluddin. In course of time, based on the repor t, submitted by the learned Sessions Judge, Nagaon, on the question of juvenilit y of the said two accused-appellants, both the two accused-appellants, namely, J ahiruddin and Jamaluddin, were found to be juvenile at the time of the alleged o ccurrence and their conviction was accordingly set aside by this Court and both of them were directed to be dealt with in terms of the provisions of the Juvenil e Justice (Care and Protection of Children) Act, 2000. 7. Thus, the present appeal stands preferred by two appellants, namely, Has en Ali and Hussain Ali. So far as the other three convicts, namely, Wahed Ali @ Ohed Ali, Syed Ali and Kapiluddin are concerned, they have not preferred any ap peal. 8.
Legal Reasoning
We have heard Mr. H. R. A. Choudhury, learned Senior counsel, appearing for the accused-appellants. We have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 9. While considering the present appeal, it need to be noted that the clear evidence of the Investigating Officer (PW8), who was, on the relevant day, i.e. , on 14.06.2002, in-charge, Itabari Police Outpost, is that an information was r eceived by him from Nagaon Police Station that a murder had taken place within h is territorial jurisdiction, whereupon he returned to his outpost and, on coming to know that his staff had already left for the place of occurrence, he, too, w ent to the place of occurrence, in Choto Roumari village, and drew sketch map of the place of occurrence and seized some weapons of the offence. It is also in the evidence of PW8 that he recorded the statements of the witnesses and, on 14 .06.2002 itself, Musstt. Hanufa Khatun, widow of the deceased, Abdul Rahman, sub mitted a written Ehahar, which stands proved as Exhibit 3. 10. Besides what have been indicated above, PW1 (Hanufa Khatun) has deposed that, on 14.06.2002, when she reached the place of occurrence, she found one Zak ir holding her husband’s head and it was Zakir, who had telephoned Itapara Polic e Outpost and also Nagaon Police Station. 11. From the above discussion of the evidence on record, it is clear that, b efore the written Ejahar (Exhibit 3) was lodged by PW1, at Itapara Police Outpos t, the police, at the said outpost, stood already informed about the occurrence and the death of Abdul Rahmen. It is, however, not discernible from the evidenc e as to whose name(s) had surfaced as the assailant(s) of Abdul Rahman. For thi s purpose, it was incumbent, on the part of the prosecution, to prove the releva nt entries in the General Diary of not only Itapara Police Outpost, but also of Nagaon Police Station. This was, however, not done and the learned trial Court also did not ensure that the information, which had been received by the police and which had set the police machinery into motion, be brought on record. 12. For the lapses, on the part of the prosecution and/or the learned trial Court, the accused-appellants cannot be made to suffer and it would be too hazar dous to decide the appeal without knowing as to whose name(s) had surfaced, firs t in point of time, as the assailant(s) of Abdul Rahman. In such circumstances, we are of the considered view that the evidence on record cannot be, and ought not to have been, treated as complete to safely make foundation for the convicti on of the accused-appellants. 13. Because of the infirmity, which we have pointed out above, we are clearl y of the view that the conviction of the accused-appellants, in the absence of c omplete evidence on record, cannot be sustained. 14. This appeal is, therefore, partly allowed. The impugned conviction of t he accused-appellants and of the other three accused persons, namely, Wahed Ali @ Ohed Ali, Syed Ali and Kapiluddin (who have not preferred any appeal) as well as the sentence, passed against them, are hereby set aside and the case is reman ded to the learned trial Court for obtaining the presence of the Investigating O fficer so that the information, which had set the police machinery into motion, in the present case, be brought on record. 15. Before parting with this appeal, we hereby make it clear that notwithsta nding the fact that the conviction of the accused-appellants, namely, Hasen Ali and Hussain Ali, and of the three convicts, namely, Wahed Ali @ Ohed Ali, Syed Ali and Kapiluddin have been set aside, the two accused-appellants and also the other three convicts, namely, Wahed Ali @ Ohed Ali, Syed Ali and Kapiluddin (who have not preferred any appeal), shall, during pendency of the trial, be kept de tained in prison, wherever they may presently be, and the question of their rele ase shall depend upon the findings, which may be, eventually, reached by the lea rned trial Court. 16. of. 12. With the above observations and directions, this appeal stands disposed Send back the LCR.