High Court · 2012

Heard Ms. M. Bora, learned counsel, appearing for the appellants and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam, appearing f or the State respondent. [4] follows: The prosecution case, in brief, as revealed at the trial, is as On 02.03.2003, accused Md. Paran Ali, Md. Kapiluddin Ali and Md. Barkatullah visited the house of Abdul Noor (hereinafter called the (cid:28)deceased) and they along with the deceased went to the nearby Shiva Mandir to enjoy the cu ltural function, held therein. Abdul Matlib, younger brother of the deceased als o attended the said cultural function, held in the Shiva temple, and he saw his elder brother i.e. the deceased, in the company of Md. Barkatullah, Md Kapil Udd in Ali and Md Paran Ali. However, on being asked by the deceased, he left for ho me and found Md Kudratullah and Md. Abu Bakkar sitting in a temporary hotel near the road. But the deceased did not return home on the said night. On the next d ay, his dead body was found lying in the water of ’Bhutiakhal’ at ’Damara Pathar ’ near a brick kiln. Accordingly, PW 1 ( Md. Abdul Rob Ali), brother of the deceased lodge an FIR (Ex t. 1) with the police, which was registered as Khetri P.S. Case No. 35/2003 unde r Sections 302/34 IPC. Prior to lodging of the FIR, Md. Abdul Mazid (PW-2) rushe d to the police station and informed the police about the incident. On receipt o f the FIR, police launched investigation into the matter. [5] During the course of investigation, police visited the place of occurrence, prepared inquest report (Ext. 2), sent the dead body of the deceased for post-mortem examination, prepared sketch map, examined the witnesses and ar rested the accused persons. At the close of the investigation, police submitted the charge s [6] heet against the appellants under Sections 302/34 IPC. The offence, being exclus ively triable by the Court of Sessions. The learned Magistrate committed the cas e to the Court of Session. The learned Sessions Judge framed charges against Md. Kudratullah, Md. Barkatullah, Md. Abu Bakkar, Md. Kapil Uddin Ali and Md. Aliur Rahman under Sections 302/34 IPC. The charge was read over and explained to the accused persons, to which they pleaded not guilty of the offence and claimed to be tried. [7] In order to prove their case, prosecution examined as many as ma ny as 11 (eleven) witness including the Medical Officer (PW -11), who performed autopsy and the Investigating Officer (PW 10). At the close of the evidence for prosecution, the accused persons were examined under Section 313 of the Code of Criminal Procedure (in short the (cid:28)Cr. P.C.), they denied the allegations, brough t against them. Their plea was that they were innocents and that they have been falsely implicated in the case. No defence evidence has been examined in this ca se. Ms. M. Bora, learned counsel, appearing for the appellants, taki [8] ng this court through the evidence on record, has submitted that that there is n o substantive or reliable evidence on record in support of the conviction and se ntence and as such the conviction and sentence, recorded by the learned Sessions Judge is bad in law. It is also submitted that PW 8, who claimed to be the eye witness, was examined by the investigating officer after about 45 days and that no explanation has been put forward for such inordinate delay in examining such vital witness. The learned defence counsel has strenuously contended that such delay in examination of a vital witness, without sufficient reasons, raises doub t about the authenticity of the evidence, given by the prosecution witness. It i s also submitted, by the learned defence counsel, that though PWs 4, 5 and 6 sta ted about the threat, given by the accused persons, more particularly, Md. Aliur Rahman, the said witnesses did not disclose about such threat to others, immedi ately thereafter. Therefore, it is submitted that their failure to disclose such vital information raises doubt about the prosecution version. It is further sub mitted that the failure of PW 8 to disclose about the incident, immediately afte r the incident, raises serious doubt about the credibility of his evidence and, that the said evidence, given by PW 8, is nothing but concocted and afterthought and as such the same cannot be relied upon. [9] Refuting the arguments, advanced by Ms. Bora, learned counsel, a ppearing for the appellants, Mr. K.A. Mazumdar, learned Additional Public Prosec utor has submitted that there is sufficient circumstance as well as direct evide nce, on record, regarding the involvement of the appellants in committing the cr ime and as such, the learned trial Judge committed no error by recording the con viction and sentence. The learned Additional Public Prosecutor has also submitted that there is suffic ient evidence to show that the deceased was last seen in the company of the appe llants and as such, applying the last seen theory coupled with the evidence, giv en by the eyewitness (PW 8), it stands proved, beyond all reasonable doubt, that the appellant had caused the death of the deceased. In view of the above, the learned Additional P.P. has submitted that the impugned conviction and sentence need no interference by this Court. [10] Having heard the learned counsel, appearing for both the parties and carefully perusing the evidence on record, we find that there is no dispute regarding death of the deceased due to injury sustained by him. It has also bee n established, from the evidence rendered by the prosecution witnesses, more par ticularly, the investigating officer (PW 10), that the dead body of the deceased was found on 03.03.2003 i.e. on the next day of the occurrence. The inquest rep ort i.e. Ext. 2 reveals that the deceased sustained multiple injuries. The autopsy of the dead body was done, on 03.03.2003, by PW -11, who was the Med ical Officer of the Gauhati Medical College & Hospital. He found the following injuries: (cid:28)(1) one cut injury over the front of the thigh 4x3 c.m. muscle x deep. (2) On cut injury over the left thigh 3x2 cm muscle deep. (3) One cut injury over the left shoulder joint 3x2 cm muscle deep. (4) One cut injury over the elbow joint front side 4x3 c.m. in size. (5) One cut injury over the left side of the abdomen 10 cm below the left naple 8 cm left for mid line abdominal cavily deep. (cid:29) The medical officer opined that the death of the deceased was ca used due to shock and haemorrage resulting from cut injury sustained by him and that the injuries were ante mortem, caused by sharp cutting weapon and homicidal in nature. He has also opined that the death of the deceased was caused 12 to 24 hours prior to the post-mortem examination. [11] From the above evidence, there is no difficulty in understanding that the deceased sustained multiple cut injuries, on 02.03.2003 and succumbed to the said injuries. Now the question is who had caused the said fatal injuries. Exc [12] ept PW 8, no body had claimed to have seen the occurrence. Md. Abdul Quayum, wh o deposed as PW 8 stated that, on the date of occurrence, he also went to enjoy the cultural function held in Shiva temple on the occasion of Shiva Ratri and he left for home at about 12.00 mid night. He stated that he had seen the deceased in the company of Md. Paran Ali, Md. Kudratullah and Md. Barkatullah. According to this witness, the deceased and the appellants also proceeded for their home and he (PW -8) was behind them. He further stated that, near the culvert, hearin g alarm, he proceeded towards the culvert and saw Md. Barkatullah and Md. Paran Ali pressing the deceased with their feet and Md. Kudratulla, Md. Aliur Rahman and Md. Barkatullah stabbing him with dagger. According to this witness, he req uested the accused persons not to kill the deceased; but, on being threat by the miscreants/ appellants, he left the place of occurrence. He further stated that , on the next day, appellant Md. Aliur Rahman visited his house and again threat ened him not to disclose about the incident to others. In his cross examination, he stated that he was interrogated by the police one and half month or two months after the incident. [13] From the above, it is found that this witness knowing about the incident, did not disclose the matter to any other person, including the family members of the deceased for about two months. His failure to reveal such vital i nformation for such a long period raises doubt about the credibility of his evid ence. No reasonable explanation has been put forward, for non discloser of such material information for such a long period. The I.O. (PW-10) has also not state d anything indicating as to why he did not examine such witness immediately afte r the incident. This inordinate delay, in examination of the sole eye witness an d failure of this witness to disclose such material fact, to others including th e members of the family of the deceased, raises doubt about the prosecution vers ion. Therefore, we do not find it safe to rely on the uncorroborated evidence of PW 8. According to PW 3, he found the deceased enjoying the function alongwith the app ellants, Md. Barkatullah, Md. Kapil Uddin Ali and Md. Paran Ali. As admitted by him, he left the function on being asked by his deceased brother. Therefore, his evidence does not indicate that the deceased was in the company of the appellan t till the time of his death. Therefore, there is no evidence to show that the d eceased was in the company of the appellants soon before his death. [14] PW 1, i.e. the brother of the deceased, stated that his wife, af ter the death of the deceased, had informed him that the accused Md. Abubakkar, Md. Kudratullah and Md. Aliur Rahman had threatened her that, if the rape case w as not withdrawn, the member of their family would be killed. From the evidence of PW 1, it is found that his wife did not disclose such vital information i.e. about the threat, immediately after the threat was given to her or before the de ath of the deceased. The silence of the wife of the deceased in this regard rai ses doubt about the alleged threat. PW-4 i.e. Mustt. Farida Begum stated that she was threatened by [15] accused Md. Aliur Rahman, who said that unless the rape case was withdrawn, they would kill one of her family members. In her cross examination she did not whis per anything about the pendency of rape case before the Court. Though PWs 1, 4, 5 and 6 stated about the threat, given to them by the appellants with regard to withdrawal of the rape case, the said witnesses failed to disclose such material fact at the relevant time i.e. immediately after the incident. Carefully perusing the evidence rendered by PWs 1, 4, 5 and 6 af [16] oresaid, who stated about the threat given by the accused, it is found that they had revealed about the threat only after the death of the deceased. The FIR (Ex t. 1), lodged after recovery of the dead body of the deceased, is also silent ab out the alleged threat given by the appellants. In view of the above, there is no substance in the allegations t [17] hat the appellants had threatened the family members of the deceased. Therefore , the silence of PW 8 raises doubt about the correctness of the evidence given b y him. Law is well settled that suspicion, howsoever, high cannot substitute the legal evidence. It is settled law that in a criminal trial prosecution is requi red to prove, beyond all reasonable doubt, and the benefit of doubt always given in favour of the accused. [18] In the light of the above discussions and considering the entire aspect of the matter, we find that the prosecution failed to adduce the substan tive and cogent evidence inspiring confidence to conclusively hold that the appe llants had caused the death of the deceased. In view of what has been discussed above, we are inclined to hol [19] d that the prosecution failed to prove the case, beyond all reasonable doubt. Th erefore, the impugned conviction and sentence recorded under Section 302 IPC aga inst the appellants cannot be maintained. [20] Therefore, we find sufficient merit in this appeal requiring int erference with the impugned conviction and sentence. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellants are acquitted. They be set at liberty forthwith, if not required in any other case. [21] Return the LCRs.