High Court · 2012

The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 10.08.1982, PW 5 (Abdul Kalam), lodged a written information , at Dillai Police Outpost, stating therein, inter alia, that, on 09.08.1982, at about 12-00 a.m., some miscreants had called Mayab Ali out of his house and mur dered him and, then, fled away. Based on the said written information and treat ing the same as the First Information Report (in short, ’FIR’), a case was regis tered under Section 302 IPC. During the course of investigation, inquest was he ld over the said dead body, post-mortem examination was conducted, the appellant was arrested, and, on completion of investigation, a charge-sheet was laid, aga inst the accused-appellant, under Section 302 IPC, along with one Allauddin.

3. During trial, accused Allauddin was discharged. However, a charge, unde r Section 302 IPC, was framed against the present accused-appellant, but he plea ded not guilty to the charge so framed against him. In support of their case, prosecution examined, in all, 11 (eleven) witn 4. esses. The accused was, then, examined under Section 313 CrPC and, in his examin ation aforementioned, the accused denied that he had committed the offence, whic h was alleged to have been committed by him, his case being that of total denial . No evidence was, however, adduced by the defence. 5. On having concluded that the accused, on provocation received, had kille d Mayab Ali, the learned trial Court convicted the accused appellant under Secti on 304 IPC and sentenced him as mentioned above. Aggrieved by his conviction an d the sentence, passed against him, the accused has preferred this appeal.

6. I have heard Ms. K. Nargis, learned counsel for the accused-appellant, a nd Mr. K. H. Mazumdar, learned Additional Public Prosecutor, Assam. I have also heard Ms. B. Sarma, learned amicus curiae. While considering the present appeal, it needs to be noted that the pros 7. ecution’s case, as unfolded at the trial, revolves around the evidence of PW 6 ( Tazamul Ali), who is son of Fayaz Ali (since deceased). The evidence of PW 6 is , therefore, taken up, first, for consideration. In his evidence, PW 6 has depo sed that, at the time of occurrence, he used to stay, at Dillai, and that his fa ther also used to stay with him and his father used to cultivate the land of May ab Ali (whom the appellant has allegedly killed). 8. As regards the occurrence, PW 6 has deposed that, on the night of the oc currence, he was sick, Mayab Ali was in his room, which was separated from the h ouse of PW 6 by a courtyard, and, on that night, at about 12-00/1-00 a.m., someb ody came to Mayab Ali’s house and called him, whereupon Mayab Ali went out of hi s room by opening his door and enquired about the identity of the person, who ha d come to his house calling him. In the meanwhile, however, Mayab Ali was beate n and, he (Mayab Ali) shouted calling Fayaz Ali (since deceased), father of PW 6 , to save him naming the accused-appellant, Tara Mia, as the assailant. PW 6 has also deposed that he (PW 6) and his father, Fayaz Ali (since de 9. ceased), tried to open the door of their house, but they did not succeed, becaus e their door was closed from outside. It is in the evidence of PW 6 that after the intruders had left, his father could manage to get out of the room after for cibly opening the door of the house and found Mayab Ali lying at his courtyard, whereupon his father, Fayaz Ali, called Abdul Kalam (PW 5) and narrated the inci dent to him.

10. Close on the heels of the evidence of PW 6, PW5 (Abdul Kalam), has depos ed that on the night of the occurrence, at about 2-00 a.m., Fayaz Ali came to hi s house and took him to the place of occurrence, where he saw Mayab Ali’s dead b ody lying in the courtyard. According to the evidence of PW 5, he was told by Fayaz Ali that somebody had called Mayab Ali to the courtyard and killed him. I t is also in the evidence of PW 5 that he lodged the FIR with the police. In h is evidence, PW 5 has, however, clarified that the contents of the FIR were base d on what Fayaz Ali had reported to him (PW 5).

11. What is, now, of utmost importance to note is that the FIR does not name any person as the assailant of Mayab Ali. There is no explanation offered by t he prosecution or discernible from the evidence on record as to why the name of Tara Mia did not appear in the FIR, as the assailant of Mayab Ali, if the conten ts of the FIR were based on what Fayaz Ali had allegedly reported to PW 5, becau se, according to PW6, Mayab Ali had called out Fayaz Ali, by name, shouting that the (Mayab Ali) was being assaulted by Tara Mia. In fact, contrary to what PW 6 claimed, the evidence of PW 5, as indicated above, is clearly to the effect th at Fayaz Ali had told him that somebody had called out Mayab Ali to his (Mayab A li’s) courtyard and killed him. There is absolutely no indication, from the evi dence of PW 5, that Fayaz Ali had named Tara Mia as the person, whose name had b een uttered by Mayab Ali as the latter’s assailant.

12. When the evidence of PW 5 is considered in the light of the contents of the FIR, it becomes abundantly clear that Fayaz Ali reported neither to PW 5 nor to the police, when the FIR was lodged, that Mayab Ali had called for Fayaz Ali shouting that he (Mayab Ali) was being beaten by Tara Mia (i.e., the accused-ap pellant).

13. In the backdrop of the above aspect of the case, when one reverts to the evidence of PW 6, it can be easily seen that though PW 6 claims that he had hea rd Mayab Ali calling his father (Fayaz Ali) and shouting that Tara Mia was beati ng him (Mayab Ali), there is no reason as to why Fayaz Ali had not heard Mayab A li shouting that Tara Mia had been beating Mayab and why the name of Tara Mia di d not figure in the FIR, which was lodged, or why Tara Mia’s name was not report ed to PW 5 by Fayaz Ali.

14. Though the prosecution, as already mentioned above, has examined as many as 11 witnesses, the fact of the matter remains that it is the lone evidence of PW 6, which implicates the accused, and there is, admittedly, no witness, who h ad seen the accused-appellant assaulting Mayab Ali to death.

15. The question, therefore, is: Whether the solitary evidence of PW 6 can be safely believed in or relied upon ? While considering the question, posed above, it needs to be noted that P 16. W 7 is the mother of PW 6, who was also in the same house, wherein PW 5 and his father, Fayaz Ali (since deceased), had been staying. As far as PW 7 is concern ed, her evidence is to the effect that, on the night of the occurrence, she woke up by hearing hulla, but she was frightened and also fell down and she did not , therefore, go out and, it was on the following day, in the morning, that she s aw Mayab Ali’s dead body, but could not learn how he (Mayab Ali) had died. 17. It is, if not impossible, extremely difficult to believe that had PW 6 h eard Mayab Ali naming Tara Mia as the assailant and calling for Fayaz Ali to res cue him, PW 7 would not have heard and/or PW 6 would not have reported to PW 7, being his (PW 6’s) mother, that Mayab Ali had called out his father (Fayaz Ali) naming Tara Mia as his assailant. In the face of this disquieting feature of th e prosecution’s case, it is wholly unsafe to rely on the sole testimony of PW 6 to found the conviction of the accused-appellant for having assaulted and killed Mayab Ali. At any rate, in the face of the evidence on record, the accused-app ellant ought to have been accorded, at least, benefit of doubt.

18. Because of what have been discussed and pointed out above, this appeal s ucceeds. The impugned judgment and order, convicting the accused-appellant, und er Section 304 IPC, and the sentence, passed against him, shall accordingly stan d set aside.

19. his surety is discharged. As accused-appellant is already on bail, his bail bond is cancelled and

20. of.

21. With the above observations and directions, this appeal stands disposed Send back the LCR.