High Court
Case Details
Crl.A. 43/2006 BEFORE HON’BLE MR. JUSTICE A. K. GOSWAMI This Criminal Appeal is directed against the judgment and order dated 16.02.2006 passed by the learned Additional Sessions Judge, Nagaon in Sessions Case No. 19 0(M)/2003 convicting the accused appellants, namely, Md. Anuwar Hussain, Md. Mus tafa Ali and Md. Makbul Hussain under Section 326/34 IPC and sentencing them to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for 4 (four) months with the
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proviso that if fine amount is realised, the same is to be paid to the injured. 2. One Md. Firoz Ali lodged an Ejahar (Ext.1) before the Officer-in -Charge, Nagaon Police Station on 06.03.2003 stating that on that day at around 8-8.30 PM, the accused persons, namely, Md. Makbul Hussain, Mastu and Md. Amir H ussain confined his brother, Md. Kutubuddin Ahmed alias Raju and to cause his de ath, assaulted him with dao and caused serious injuries on his neck and also inf licted many injuries all over the body by dagger and dao. Inspite of raising sh out, as nobody turned out, he, somehow could run away from the place of occurren ce and then collapsed on the road. He was picked up by Saiful Bhuyan, who took him to Nagaon Hospital and got him admitted there. It was also stated that one M d. Habibur Rahman was also with Md. Saiful Bhuyan. Based on the said Ejahar, Na gaon Police Station Case No. 191/2003 under Section 341/326/304/34 IPC was regis tered. The investigating Officer, during the course of investigation, p 3. repared a sketch map (Ext.3) of the place of occurrence and had also recorded th e statement of witnesses. The accused persons had surrendered before the learn ed Chief Judicial Magistrate, Nagaon, on 21.03.2003 and they were released on ba il on 20.05.2003. On completion of investigation, the Investigating Officer sub mitted Charge-Sheet (Ext.2) against the appellants under Section 341/324/325/307 /34 IPC. In the Charge-Sheet, it is also indicated that the informant of the ej ahar disclosed that name of Md. Amir Hussain was wrongly written in the ejahar i n place of Md. Anuwar Hussain and accordingly, he had prayed for releasing him f rom the accusation. In the Charge-Sheet, it was also indicated that Mustafa is also known as Md. Mastu Ali and Md. Anuwar Hussain is known as Anar. 4. An offence under Section 307 IPC being exclusively triable by th e Court of Sessions, the learned Sub-Divisional Magistrate (Sadar), Nagaon commi tted the case to the learned Court of Sessions Judge, Nagaon. Accordingly, Sess ions Case No. 119(N)/2003 was registered and later on, the case was transferred to the learned Additional Sessions Judge, Nagaon for disposal. 5. On 02.09.2003, charge under Section 307 IPC was framed. After e vidence was recorded, the charge was altered to charges under Section 307/34 IPC . On both the occasions, the charges being explained, the accused persons plead ed not guilty and claimed to be tried. After charge was altered, option was gra nted to adduce defence evidence and also to cross-examine the witnesses on the a ltered charges. But the defence declined to adduce any evidence and also did no t opt for again cross-examining the witnesses. 6. During trial, prosecution examined 10 (ten) witnesses. The info rmant was examined as PW 1 and the injured was examined as PW9. The Doctor and the investigating Officer were examined as PW 6 and PW 10, respectively. There is no eye witness to the occurrence. 7. hey had taken the plea of denial. PW 1, informant, had stated that he was informed by one Md. Sadi 8. que Khan that his brother, Md. Kutubuddin Ahmed alias Raju was assaulted by some one and that he was in the hospital. On asking Raju in the Hospital as to who h ad assaulted him, he was told that Anar, Makbul and Mastu had assaulted him, sp ecifically saying that Makbul struck him blow by sword on his neck, Anar assaul ted him on his hand and Mastu tried to tie him up with a rope. He, somehow, esc aped from there and finding no help even after shouting, he reached the shop of The accused were examined under Section 313 Cr.P.C. where also t Gopal Pandit (PW7). In cross-examination, he stated that he lodged the ejahar a fter meeting Raju, who worked as a goldsmith. 9. PW 2 is the mother of the informant (PW1) and the injured (PW 9) . She had stated that Imdadul (PW3) informed her that her son was assaulted by someone and he was sent to the hospital. She also stated that he found Raju in the hospital soaked in blood. She stated that on being asked, Raju revealed the names of the appellants. In her cross-examination, she had stated that Raju reg ained his senses in the late night/early morning. 10. PW 3 had stated that he was gossiping in front of the shop of Go pal (PW7) at Chakitup and he had seen Raju coming in an injured condition from G oresthan (Burial place). On enquiries made by him, he was told that the appell ants had inflicted injuries by sword and he had seen the injury on the neck. He then took Raju to shop of Gopal (PW 7) and proceeded to inform the family of Ra ju and on the way he met Md. Saiful Bhuyan (PW4), to whom he disclosed about the incident. In his cross-examination, he disclosed that he was talking only with Gopal (PW7) and there was nobody else. He further stated that nobody else was accompanying Raju. It was also disclosed by him that the Goresthan was about ha lf a kilometre away from the shop of Gopal (PW 7). 11. PW 4 deposed that he was talking with some friends in front of h is house when he found PW 3 coming fast on a bicycle and on being asked, he said that Raju was assaulted with sword. He then went to the shop of Gopal (PW7) an d he alongwith some of his friends including one Habibur Rahman (PW5) took him t o the hospital. He had stated that on being asked, Raju had disclosed the names of the assailants, who are the appellants. In his cross-examination, he had st ated that PW3 had told him that somebody had assaulted Raju and he was going to inform his family. In the Auto Rickshaw, when he was taken to the hospital, Raj u was not able to speak clearly and therefore, he had asked him not to speak. 12. Habibur Rahman (PW5) had stated that Md. Saiful Bhuyan (PW4) had come to his shop at about 9 PM and told him that Raju was assaulted and so he w as needed to be taken to the hospital and accordingly, the injured was taken to the hospital. He had also stated that while the doctor questioned the injured i n his presence, he told that Makbul, Mustafa and Anar had assaulted him. He als o stated that he had seen the injuries in neck and hand of Raju. In his cross-e xamination, he had stated that the injured was not speaking clearly and he was g asping when he had disclosed the names to the doctor. He stated that prior to Ra ju telling the doctor the names of the assailants, he had not heard the names of the assailants. 13. PW 6 is the doctor, who had examined the injured. He had depose d that injures were found on the person of the injured and while injury No.1 is a simple injury caused by sharp cutting weapon, injury No. 2 was grievous in nat ure and caused by blunt weapon. In cross-examination, he stated that the injury No. 2 was caused due to impact of blunt object. 14. Gopal Pandit (PW7) stated that on the day of occurrence, he was watching TV alongwith some other persons. Raju came there in an injured conditi on and he stated that he was assaulted and he should be taken to the hospital an d accordingly, the persons, who were in the shop, took him to the hospital. In his cross-examination, he had stated that Nirmal Das, Faijul Rahman and Imdadul (PW3) were watching game on TV with him. He also stated that Raju came walking there and he was in a position to talk. Md. Aminur Rahman (PW8) stated that while he was coming back fro 15. m Namaz at around 9 PM, he found Raju sitting on the road and he asked him to sh ow him the road to (cid:28)Pujabari (cid:29) and accordingly, he showed the path. He noticed b lood dripping from his neck on the light of the torch and on being asked, he sai d that Makbul, Anuwar and one other person had assaulted him. In his cross-exam ination, he had said that he had forgotten the name of one of the assailants. H e also disclosed it was a dark night. 16. Md. Kutubuddin Ahmed alias Raju, (PW9) is the injured. He had s tated that on the date of occurrence at around 4.30 PM, he had come to the resid ence of his paternal aunt at Amirpatty and after spending some time there, he ca me out to the road, where he met Makbul, Mastu and Anuwar. They requested him to
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accompany them to ’Bar Bazar’ and accordingly, they went there and had tea. La ter on, Anuwar wanted to come to his residence at Chakitup and accordingly, all of them proceeded to Chakitup. Then the accused Anuwar Hussain wanted them to g o to his place and accordingly all of them started towards his home. As they ha d reached Goresthan, Makbul assaulted him in the neck with a sword and as Anuwar wanted to strike blows by sword, he attempted to block it by his hand and as a result thereof, he sustained injury in his finger. He was felled down by Makbul and Mustafa. While Makbul tied him by rope on his feet, Mustafa had gagged him . Anuwar wanted to pierce his stomach with a sword and he screamed. A lady cam e there and thep accused fled away. She showed him the road to his house and so mehow, he could manage to walk some distance and collapsed in front of the Pan S hop of Gopal (PW7), who sent him to hospital in an Auto Rickshaw with a person, named, Rocky. Saiful (PW 4) and Bimal had also accompanied him. He also stated that Habibul got up in the Auto Rickshaw on the road. He had stated that the ac cused persons had hidden the swords under the bamboo groove at the place of occu rrence and they had taken out those from that place. In his cross-examination, he had stated that he had not met the accused before going to the house of his p aternal aunt. It was also stated by him that there was a quarrel between them a bout a week back but the matter was sorted out amicably and therefore, he was no t having any apprehension to go with them. He had also stated that it was a fog gy dark night and as such he did not know whether there were any houses by the s ide of the road. He denied the suggestion that he was playing games involving b etting and he sustained injury after getting involved in some kind of scuffle th ere. PW 10 is the Investigating Officer. He had deposed that on the 17. day of incident, he could not take the statement of the injured as he was not in a position to speak. In his cross-examination, he had stated that the incident did not take place on the road but it took place in a vacant plot of land and t here was a house of one person. There was no such road at the place of occurren ce and there was no sign of blood. He also stated that PW1 did not tell that he came to learn from Sadique, that Anar, Makbul and Mustafa had assaulted Raju. He had deposed that PW2 had disclosed the names of Anuwar, Mustafa and Makbul ou t of suspicion. It was also stated by him that PW9 did not tell him that the ac cused persons had taken out swords from the bamboo groove. 18. Mr. RM Choudhury, learned counsel for the appellants contends th at the prosecution version is not at all believable and there are gross contradi ctions in the evidence of the witnesses going to the root of the matter. Accordi ng to him, the edifice of the prosecution case is that PW9 was assaulted with sw ords. It is noteworthy, according to him, that the alleged fact of the assailant s taking out the swords from under a bamboo groove was not stated by PW9 before the police and such statement surfaced only at the time of examination of PW9. H e strenuously urges that on the basis of the materials on record, it will be haz ardous to convict the appellants and therefore, the appellants are entitled to b enefit of doubt. 19. Mr. BJ Dutta, learned Addl. Public Prosecutor, Assam, on the oth er hand, submits that the evidence of Doctor (PW6) conclusively determines the i njuries sustained by PW9. He submits that there is no reason to disbelieve the e vidence of the injured (PW9), PW3, PW4, PW7 and PW8 who had met the injured imme diately after the occurrence had taken place. Conceding that there are some mino r contradictions here and there, it is submitted by him that one cannot make a m ountain of a molehill and such contradiction, instead of weakening the prosecuti on case, rather reinforces the same. He submits that on the basis of the materia ls on record, the learned Trial Court rightly convicted the accused appellants a nd no interference is called for. 20. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 21. The evidence on record discloses that prior to the incident, abo ut a week back, there was some kind of quarrel in between PW9 and the assailants and that the dispute was settled amicably and patched up. 22. It also appears that according to the prosecution version there was a chance meeting of the injured with the assailants when the injured had gon e to the residence of his paternal aunt. 23. The sketch map Exhibit 3 discloses that the incident did not tak e place on the road and PW10 had also, while corroborating the same, indicated t hat the incident had taken place in a vacant plot of land near the Goresthan. Th e sketch map also indicates that the Goresthan is slightly away from the road. T he sketch map does not indicate existence of any bamboo groove. PW10 did not als o find any sign of blood on the place of occurrence. The prosecution version, as it stands, is that the assailants were not carrying weapons like sword when the y started to proceed from Nagaon to Chakitup. The night was dark and foggy as di sclosed by PW9 himself. PW9 could not find out whether there was any house nearb y because of darkness. In such a situation, it is difficult to believe that the assailants could have dug up the swords from the place where they were hidden. P rosecution case is further dented by the fact that in the vicinity of the place of occurrence there was no bamboo groove either. As has been highlighted by Mr. Choudhury, PW9 had also not made any statement before the police that the assail ants had taken out the swords from under the ground where the same was hidden. P rosecution case, as unfurled by the evidence of the witnesses, seem to suggest a picture that the incident had not taken place in the manner it was suggested. 24. Evidence on record discloses that PW3 is the first person or may be the second person who had encountered the injured. PW3 in his evidence has s tated that on enquiries made by him, it was disclosed by the injured (PW9) that the appellants had inflicted injuries. The same version was also reiterated by P W4 that PW3 had informed him about the assailants. But in cross-examination, PW4 stated that PW3 had only told him that someone had assaulted him. PW7 is a cent ral figure in the prosecution case in that it is in his shop where the injured, PW3 and PW4 had converged. PW7 stated that Raju (PW9) had walked alone in an inj ured condition and he had stated that as he was assaulted, he needed to be taken to the hospital. PW7 does not say that injured PW9 had revealed any names of as sailants. The evidence of PW3 is also inconsistent with the evidence of PW9 as w ell as PW7. There is also some discrepancy in the evidence with regard to taking of the injured to the hospital. Prosecution has not also made any effort to ide ntify the lady who emerged at the time of the assault and which made the accused to flee away from the place of occurrence in order to lend credence to the pros ecution story. PW8 has stated that on the glow of torch light he had seen blood dripping from the neck of PW9 and as such he had enquired of the injured as to w ho his assailants were. It is also stated by him that on such enquiry being made by him, the injured disclosed the names of the assailants. However, it is impor tant to note that PW10 in his cross examination had stated that PW8 had not told him that he had seen blood coming out from the neck of PW9. In view of the abov e, his evidence also has to be viewed with caution and circumspection. His evide nce cannot be the basis alongwith the evidence of PW9 to lay the foundation for conviction of the accused appellants. 25. In view of the discussions aforesaid, this Court is of the consi dered opinion that prosecution has not been able to prove the guilt of the accus ed appellants beyond all reasonable doubt and as such the appellants are entitle d to benefit of doubt. 26. Accordingly, the impugned judgment and order passed by the learn ed Sessions Judge is set aside. The accused appellants are set at liberty. As th e appellants are on bail, their bail bonds will stand discharged. 27. Registry will send down the records.