High Court
Case Details
Crl.A. 162/2008 BEFORE THE HON’BLE MR. JUSTICE B.D. AGARWAL AND THE HON’BLE MR JUSTICE N. CHAUDHURY (B.D. AGARWAL, J.) The judgment dated 30.08.2008, passed by the learned Additional Sessions Judge (FTC), Hojai, Sankardevnagar, Sessions Case No. 70 (N) of 2007, i s under challenge in this appeal. By this impugned judgment, the learned Additio nal Sessions Judge has convicted the appellants under Sections 302/454, read wit h Section 149 of the Indian Penal Code, 1860, (hereinafter, in short, ’IPC’) and various sentences have been awarded, maximum being Life Imprisonment. Being agg rieved with the conviction and sentence the appellants have preferred this commo n appeal. 2.
Legal Reasoning
9. For the foregoing reasons, we find that it is a good case, where in, the appellants deserve to be given benefit of doubt, which is accordingly gi ven.
Arguments
We have heard Sri FKR Ahmed, learned counsel appearing on behalf of the appellants as well as Smt B Bhuyan, learned Additional Public Prosecutor for the State of Assam. We have also gone through the impugned Judgment as well as the evidence on record. 3. The offence of murder took place at about midnight on 23.04.2004 . The written FIR was lodged in the morning on 24.04.2004 against 7 (seven) pers ons. However, after investigation, 8 (eight) persons were challaned for the offe nce of murder and other offences. During the course of trial, 2 (two) accused pe rsons, namely, Nazimuddin and Aziruddin had absconded. In this way, six persons were tried for the aforesaid offences and only 2 (two) appellants have been conv icted. The remaining four accused persons have been acquitted. 4. The prosecution examined only 9 (nine) witnesses. PWs-1, 3 and 4 are the wife, son and daughter of the deceased respectively; PWs-2 and 5 are th e brothers of the deceased; PW-6 is the village Gaonburah; PWs-7 and 8 are the P olice Officers; PW-9 is the doctor to prove the autopsy report. The defence case was of total denial and no evidence in defence was tendered. However, the prose cution witnesses were cross-examined to suggest that the murder of the deceased was committed by the wife herself in association with her family members or her brother-in-laws. Though various suggestions were given that the marital relation between the wife and the deceased was constrained and a case of physical and me ntal torture was also filed against the deceased on behalf of his wife the sugge stions were denied. However, while filing an application before this Court under Section 389 CrPC two sets of FIR, lodged against the deceased have been filed. One such FIR was lodged by the wife’s brother, Safiquddin and the other FIR was lodged by the brother of the deceased, namely, Iqbal Hussain (PW-2). In GR Case No. 365 of 2000 under Section 498 (A) IPC, charge sheet was submitted and the de ceased was absconding throughout the trial and warrant of arrest was also pendin g till the date of his murder. From these two FIRs, it is apparent that the wife of the deceased had deep-rooted enmity with her husband. Similarly, the decease d also did not have good relation with his brother, namely, Iqbal Hussain (PW-2) . In the backdrop of the two FIRs pending against the deceased it was incumbent upon the prosecution to establish the motive for killing only one person in a ho use where there were four inmates. We would like to mention here that neither th e wife nor her two children were caused any physical harm by the assailants. 5. PWs-1, 3 and 4 were at home. According to them, seven assailants had entered in their house. Two offenders were guarding the wife and children i n the first part of the room and four persons had entered in the second part of the room and killed their husband/father by sharp weapons and these three so-cal led eye-witnesses have also claimed that they could identify the appellants in t he light of kerosene lamp. However, the Investigating Officer did not seize any kerosene lamp from the place of occurrence. The witnesses have also claimed that they could see the entire incident through the partition, i.e., bamboo wall. In our considered opinion, in the absence of sufficient light in the room of the d eceased it may not have been possible to see each and every action of the appell ants. According to the Investigating Officer (PW-7), the bamboo wall was 6-7 fee t high and as per the witnesses the deceased was sleeping on the ground. Under s uch circumstances, it could not have been possible for the PWs-1, 3 and 4 to see as to how the deceased was assaulted. The above apart, all the three so called eye-witnesses have admi 6. tted that the assailants did not have any visiting terms in their house and the witnesses did not have any intimacy with them. PW-4 has deposed that there was enmity between the assailants an 7. d the deceased. But the reason has not been explained by this 14-years-old daugh ter of the deceased. Besides this, PW-4 has admitted that both the appellants we re living in a different village and they were seen only occasionally when they used to come for making purchases in their village. PWs-1, 3 and 4 have also adm itted the fact that the assailants were not well known to them. We have already noted earlier that the offence was committed in the midnight and no witness has deposed that there was sufficient light in the room of the deceased. Hence, ide ntification of the appellants is also not above suspicion. 8. Although the matter was reported to the police within a short ti me naming the accused persons, strangely, the name of the assailants were not di sclosed to the Gaonburah (PW-6), who had visited the place of occurrence within no time. Hence, identifying as many as 7 (seven) assailants and naming them in t he FIR is not above suspicion. We have also mentioned earlier that the prosecuti on witnesses have not disclosed the nature of enmity between the appellants and the deceased or the motive for the crime.
Decision
10. In the result, the appeal stands allowed. The impugned judgment is hereby set aside. The appellants are directed to be released from the custody forthwith, if not wanted in any other case. 11. 12. The Registry is directed to issue release order(s). Return the LCRs, along with a copy of this judgment.