High Court
Case Details
Crl.A. 26/2009 BEFORE HON’BLE MR. JUSTICE I.A. ANSARI HON’BLE MR. JUSTICE P.K. MUSAHARY JUDGEMENT & ORDER ( ORAL ) (Ansari,J) This is an appeal against the judgment and order, dated 30.12.2008, pass ed, in Sessions Case No. 53 (NL) 2006, by the learned Sessions Judge, Lakhimpur, convicting the accused-appellants under Section 302 IPC and sentencing each of them to undergo imprisonment for life and pay fine of Rs. 5,000/- and, in defaul t of payment of fine, suffer rigorous imprisonment for a further period of 6 (si x) months. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus:
Legal Reasoning
(i) On 03.10.2004, at about 8-00/8-30 p.m., when Abdul Rahman Maulana was pr oceeding towards his home from Silonibari Bazaar, riding a bicycle, as many as f ive persons, namely, Md. Hatem Ali (since deceased), Md. Karam Ali (who is appel lant No. 2 in this appeal), Md. Raham Ali (since acquitted), Hasen Ali (since ac quitted) and Kashem Ali (since acquitted) came in a group, armed with dao, lathi and iron rod and assaulted Abdul Rahman Maulana. Attracted by the cries of the said Abdul Rahman Maulana, PW2 and PW3, both sons of Abdul Rahman Maulana (sinc e deceased), came running and saw, in the focus of the torchlight, which PW3 was carrying in his hand, their father being assaulted by the five persons aforemen tioned. On seeing PW2 and PW3 coming, all the accused aforementioned took to th eir heels. On being informed, at Silonibari Police Outpost, at 9-00 a.m., by on e Sayed Ali that Abdul Rahman Maulana had been hacked to death by unidentified m iscreants, while he was proceeding towards home, General Diary Entry No. 24, dat ed 04.10.2004, was made and the Investigating Officer (PW11) rushed to the place of occurrence. On coming to know about the occurrence, the two wives of the sa id injured rushed to the place of occurrence and the said injured, too, revealed to them and others, who had gathered at the place of occurrence, the names of t he 5 (five) persons aforementioned as assailants. The said injured also stated before the police the name of the said five persons aforementioned as the person s, who had assaulted and injured him. From the place of occurrence, the said in jured was taken, by a vehicle, to the Civil Hospital, Lakhimpur. On the way to the hospital, too, the injured revealed the names of the five persons aforementi oned as his assailants. At the hospital, the injured succumbed to his injuries. His son, Saidur Rahman (PW3) @ Khalilur Rahman, then, lodged an Ejahar, in wri ting, at Silonibari Police Outpost. Having made GD Entry No. 32/2004, in this r egard, the Investigating Officer sent the said Ejahar to the North Lakhimpur Pol ice Station and, treating the same as First Information Report (in short, ’FIR’ ), North Lakhimpur Police Station Case No. 652/2004, under Section 143/147/148/ 149/302 IPC, was registered against the said persons. (ii) During investigation, inquest was held over the dead body of Abd ul Rahman Maulana and the said dead body was also subjected to post mortem exami nation. On completion of investigation, police laid charge sheet against the fi ve persons aforementioned under Sections 143/ 147/ 148/ 149/ 326/302 IPC. 3. At the trial, when charges under Sections 143, 147, 148, 326 and Section 302 IPC read with Section 149 IPC were framed, all the accused persons pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 11 (eleven) wi tnesses. All the five accused persons were, then, examined under Section 313 CrP C and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by him, the case of the defence being that of denial and of having been falsely implicated due to enmit y, which they had with the said deceased and his family over a piece of land. No evidence was adduced by the defence. 5. However, having found three of the accused, namely, Raham Ali, Hasen Ali and Kashem Ali not guilty of the offence, which they had been charged with, the learned trial Court acquitted them accordingly, but convicted the remaining two accused, namely, Md. Hatem Ali and Md. Karam Ali and passed sentence, for their conviction under Section 302 IPC, accordingly as mentioned above Aggrieved by t heir conviction and the sentence, which had been passed against them, the two co nvicted persons preferred this appeal. 6. During pendency of the appeal, the accused-appellant No. 1, namely, Md. Hatem Ali, died and this appeal has been pursued by the accused-appellant No. 2, namely, Md. Karam Ali.
Legal Reasoning
7. We have heard Mr. M. H. Choudhury, learned counsel, appearing for the a ccused-appellant. We have also heard Mr. S. Jahan, learned Additional Public Pr osecutor, Assam. 8. The moot question, which falls for determination, in this appeal, is: Wh ether the accused-appellant No. 2, namely, Md. Karam Ali, along with accused Hat em Ali (since deceased), had intentionally caused death of Md. Abdul Rahman Maul ana and thereby committed the offence of murder punishable under Section 302 IPC . Our quest for an answer to the above question brings us, first, to the e 9. vidence of the doctor (PW1), who had, admittedly, conducted post mortem examinat ion on the dead body of the said deceased. His findings are as follows: (cid:28)i) One deep incised wound 6 (cid:29) X 5 (cid:29) on the left loin cutting through the left hip bone exposing the visera of the abdomen blood cloths seen in the wound. ii) Two nos. of sharp penetrating wounds over the left upper arm laterally (205 cm X 4 cm approximately each). iii) Five numbers of deep penetrating wounds over the right upper arm posteriorl y (Apprx 2 cm X 3 cm). IV) Four numbers of deep penetrating wounds over the left by 2.5 cm X 2.5 cm app rox each. (cid:29) 10. The doctor (PW1) also deposed that all the injuries were ante mortem in nature. The doctor (PW1) has opined that the said deceased died due to shock an d haemorrhage caused by the injuries sustained, the injury No. 1 being sufficien t to cause death in the ordinary course of nature. The findings of the doctor h ave gone unchallenged by the defence and his opinion, with regard to the nature of the injuries caused, as well as the cause of death have not been disputed by the defence. We, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW1). 11. We, therefore, see no reason to doubt the correctness and veracity of th e evidence given by the doctor, more particularly, because the findings of the d octor are substantially consistent with the findings of the Investigating Office r as stand recorded in the inquest report. 12. The findings of the doctor clearly show that there was only one deep inc ised wound on the left loin and several sharp and deep penetrating wounds over t he arms. 13. Bearing in mind the medical evidence on record, when we turn to the evid ence of PW2 and PW3, both of whom, as already indicated above, are sons of the s aid deceased, these two witnesses, we notice, have deposed broadly in tune with each other. Their evidence is to the effect that on the night of the occurrence , i.e., on 03.10.2004, at about 8-00/8-30 p.m., they started from their cloth st ore, situated at the market, for their home and, as soon as they covered a littl e distance on the road, they heard a man shouting, (cid:28)I am being killed (cid:29), (cid:28)I am be ing killed (cid:29). Having heard the man shouting, both PW2 and PW3 ran towards the pl ace, from where the cries were being raised, and, in the focus of the torch ligh t, which PW3 was holding in his hand, they saw all the five accused persons, who se names we have already mentioned above, assaulting their father, Abdul Rahman. According to PW2 and PW3, they saw accused Hatem Ali (since deceased) and Kara m Ali (i.e., the appellant in the present appeal) assaulting their father with d ao, accused Hasen with a wooden lathi and both, accused Raham and Kasem, assault ing Abdul Rahman with iron rods and, on noticing the two sons of the said deceas ed coming towards them, the accused persons fled away. 14. What is in the evidence of PW2 is that he went to Silonibari Outpost and informed the police, whereupon the police came and asked their father about the incident and their father told the police that the said accused persons had ass aulted him. As far as PW3 is concerned, his evidence, in this regard, is that, when 15. he (PW3) and his brother (PW2) saw their father being assaulted by the five accu sed persons aforementioned, they raised hulla and, on hulla being so raised by t hem, the accused persons ran away and, hearing the hulla, nearby people came to the place of occurrence and the police, at Silonibari Outpost, was informed abou t the occurrence and, a little latter, police, too, arrived at the place of occu rrence and took their father to civil hospital, but their father died at the hos pital. 16. What is important to note, in the evidence of PW2 and PW3, is that PW3 h as claimed that, before being taken to the civil hospital from the place of occu rrence, their father told those, who were assembled near him, the names of the s aid five persons as his assailants and that his father also told the police the same thing latter. So far as PW2 is concerned, his evidence is to the effect that their fat 17. her had told the police and also the people, who had assembled there, the names of the five persons as his assailants. 18. Close on the heels of the evidence of PWs 2 and 3, PW9 has deposed that he had gone to Sillonibari Bazar and when he was on his way to home, he heard hu lla and ran towards the direction from where the hulla was being raised and, on going some distance, he saw five persons running away through the paddy field an d, in the focus of the torch light, which he was holding in his hand, he saw the said five accused and, amongst them, accused Kasem was holding a rod in his han d, accused Raham holding a lathi and he also saw a long dao in accused Hatem’s h and and another dao in accused Kasem’s hand, but he did not notice any weapon in the hands of Hasem and, on coming there, he (PW9) saw injured Abdul Rahman and his two sons along with his two wives present near him. 19. As we come to the evidence of the widows of the said deceased, it would become transparent that they came to the place of occurrence at a later stage an d, as such, the question of PW9 seeing wives of the injured, Abdul Rahman, prese nt near Abdul Rahman at the time when PW9 came rushing to the place of occurrenc e, could not have arisen. 20. Be that as it may, from the evidence of PWs 2 and 3, it becomes abundant ly clear that both of them had seen accused Hatem and accused Karam assaulting t heir father by means of dao. If what these two witnesses deposed were true, ther e ought to have been, at least, more than two incised wounds on the said dead bo dy; whereas the medical evidence on record reveals only one incised wound. This apart, the evidence of PWs 2 and 3, coupled with the evidence of PW9, do not sho w as to how penetrating wounds were caused because no such weapon has been ascri bed in the hands of the assailants by any of the witnesses, which would have cau sed penetrating wounds as sharp and deep as the doctor found. 21. Coupled with the above, if the evidence of PWs 2 and 3 were true, there would have been some injuries in tune with the assault on the said deceased by l athi and iron road; but the medical evidence does not disclose any such injuries on the said dead body, which could have been caused either by lathi or by an ir on road. 22. Situated thus, it is clear that the medical evidence on record, far from supporting the evidence of PWs 2, 3 and 9, contradicts the same. There is no ex planation offered by the prosecution or discernible from the evidence on record as to why the doctor’s evidence shall not be believed, particularly, when there is no allegation of lack of bona fide. on the part of the doctor; whereas the ad mitted case of the prosecution has been that there was a land dispute between th e family of the deceased and the family of the accused and their relationship wa s so intensely bad that they were pursuing a proceeding under Section 107 Cr.PC. Undoubtedly, the relationship between the alleged assailants and the deceased w as inimical. This enmity is a double-edged weapon and can cut both the ways. Whi le the enmity may become the cause of a case for assaulting the person with whom one has the enmity, eminently also makes it possible for the accused to be fals ely implicated even if not involved. 23. In the case at hand, as the evidence on record discloses, the informatio n, which was received first, at the outpost, was that some unidentified miscrean ts has assaulted and injured Abdul Rahman. Considered in this light, it becomes clear that the evidence of PWs 2, 3 and 9 cannot be described as the evidence of witnesses, who are wholly reliable. There evidence can, at best, be described a s the evidence of a witness, who is neither wholly reliable nor wholly unreliabl e. A witness of this category requires corroboration from independent evidence, direct or circumstantial. In the case at hand, the evidence of all these three w itnesses, namely, PWs 2, 3 and 9 did not receive any support from any independen t and reliable evidence. Though PWs 2, 3 and 9 have substantially corroborated e ach other, the fact of the matter remains that one infirm witness cannot be trea ted to have legally corroborated evidence of another infirm witness. 24. Keeping in view what we have pointed out above, when we come to the dyin g declaration, which was alleged to have been made by the said deceased, shortly before he met with his death, it needs to be noted that, according to the evide nce of PWs 2, 3, 4 and 5, the injured had named the assailants not only to his t wo sons and wives, but also to the neighbouring people and the police. 25. As far as the Investigating Officer is concerned, he has, nowhere, claim ed that the said injured had made any statement identifying his assailants. Thi s apart, PW7, who, admittedly, accompanied the injured to the hospital, does not also support the claim of PWs 2 and 3 that their father had disclosed the names of the assailants, while he was being carried to the hospital. 26. Neither, therefore, the direct evidence, adduced by the prosecution, nor the alleged evidence of the deceased, by way of dying declaration, can be safel y believed in, or relied upon. What may not also be ignored is that the learned trial Court has acquitted three of the accused persons on benefit of doubt mean ing thereby that the evidence, given by PWs 2, 3 and 9, as eye-witnesses, and th e evidence of the alleged dying declaration, given to PWs 2, 3, 4 and 5, had not been entirely believed by the learned trial Court. When their evidence was not believed so far as their evidence implicating the three of the said three acqui tted accused persons is concerned, there ought to have been convincing and impel ling reasons for the learned trial Court to come to a definite conclusion in ord er to confidently hold Hatem Ali and Karam Ali the assailants of Abdul Rahman. No such reason, however, has been assigned by the learned trial Court for convic ting the two appellants, one of whom has already died. The only reason assigned is that these two accused persons were seen, by PWs 2, 3 and 9, assaulting the said deceased with daos in their hands. It appears to have escaped the notice o f the learned trial Court that if two persons had assaulted the said deceased, b y means of daos, there would have been more than one incised wounds on the body of the said deceased; whereas, there was only one incised wound, as already indi cated above, found on the said dead body and this finding of the doctor was neve r put to challenge by the prosecution. 27. Because of what have been discussed and pointed out above, we are of the considered view that the evidence on record was not sufficient, reliable and ad equate to found conviction of the two appellants, one of whom, if we may reitera te, has already died. 28. In the backdrop of the evidence, which we have discussed above, we have no hesitation in holding that the appellant, Md. Karam Ali, ought to have been a cquitted by according to him, at least, benefit of doubt. 29.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant, Md. Karam Ali, and the sente nce, passed against him by the judgment and order under appeal, are hereby set a side. The accused-appellant, Md. Karam Ali, is held not guilty of the offence, which he stands convicted of, and is acquitted of the same under benefit of doub t. Let the accused-appellant, Md. Karam Ali, be set at liberty, forthwith, 30. unless he is required to be detained in connection with any other case. 31. of. 32. With the above observations and directions, this appeal stands disposed Send back the LCR.