High Court · 2012

Aggrieved by the said conviction and sentences, the convicted pe rsons, namely Hanif Ali, Nabibar Rahman, Abul Hussain and Shah Jahan Ali preferr ed Crl. Appeal No. 81/2008, while Majibar Rahman, Azmat Ali and Hasmat Ali (Asma t) preferred Crl. Appeal No. 54/2008. As both the appeals have arisen out of the same judgment and order involving similar facts and questions of law, and as ag reed to by the learned counsel appearing for both the parties, we have heard the appeals aforesaid together and propose to dispose of with this common judgment and order. 2. We have heard Mr. D. Talukdar, learned Counsel appearing for the appellant and Mr. D. Das, learned Additional Public Prosecutor, for the State o f Assam. 3. The prosecution case, as revealed at the trial, is that, on 13/7 /1998 at about 1 P.M., when Mr. Shorab Ali (hereinafter called the deceased), on his way to the fish market, was talking with Sarfat Ali (PW3) and Tamez Ali (PW 5), who were harvesting paddy, the appellants, armed with dao and lathi assaulte d the deceased, causing injuries to his person. Both Sarfat Ali and Tamez Ali al so, while trying to intervene sustained injuries at the hands of the appellants. The deceased, in injured condition was shifted to the hospital where he succumb ed to the injuries. Abdul Malek, son of the deceased, as the informant, lodged an FIR (Exhib it 2) with the Police, which was registered under section 147/341/325/302 IPC. O n receipt of the said FIR, Police launched investigation, visited the place of o ccurrence, prepared the inquest report, sent the dead body for post mortem exami nation, examined the witnesses and arrested the accused persons. At the close of investigation, Police submitted charge sheet against the appellants. The offence under section 302 IPC, alleged to be committed by the appellants, be ing exclusively triable by the Court of Sessions, the learned Additional Chief J udicial Magistrate, Barpeta, committed the case to the Court of Sessions. Accord ingly, the learned Sessions Judge framed charges under section 147/149/302/324/3 23 IPC. The charges were read over and explained to the accused persons, to whic h they pleaded not guilty and claimed to be tried. 4. In order to prove their case, the prosecution examined as many a s 12 witnesses, including the Medical Officers (PW1 and PW9). PW1 performed the autopsy and PW9 examined the injured persons i.e. PW3 and PW5 and the Investigat ing Police Officer (PW2). At the close of evidence for the prosecution, the accu sed persons were examined under section 313 Cr.P.C. They denied the allegations, brought against them and examined two defence witnesses.

5. onvicted and sentenced the appellants as indicated above. 6. Learned counsel, appearing for the appellants, taking us through the evidence on record have submitted that except uncorroborated evidenced of P Considering the evidence on record, the learned Sessions Judge c W3 and PW5, there is no evidence on record to substantiate the involvement of th e appellants. The learned counsel for the appellants have submitted that as the learned Trial Judge refused to accept the dying declaration, alleged to be made by the deceased, the uncorroborated evidence, given by PW3 and PW5, cannot be ac cepted as substantive evidence to base the conviction and as such the learned Tr ial Judge committed error by convicting the appellants on the basis of the said evidence, rendered by PW3 and PW5. Refuting the said arguments, advanced by the learned defence cou 7. nsel, Mr. D. Das learned Additional Public Prosecutor, supporting the impugned j udgment and order has submitted that PW3 and PW5 were the eyewitnesses to the oc currence and as such the learned Trial Judge committed no error by relying on th eir evidence. 8. Having heard the learned counsel for the parties and considering the materials on record, we find that there is no dispute that an incident had taken place, on 13/7/1998 and the deceased succumbed to the injuries sustained b y him. The Medical Officer (PW1) who performed the post mortem examination of th e dead body of the deceased, found the following injuries in respect of the dece ased. One lacerated injury at left hand and fracture of both bone. Lacerated injury on the left leg with fracture of both bone of left leg. Another head injury in cen tre and Occipetal region, size - (2x2) cm. Skull fracture also present. The said Medical Officer opined that the cause of death was due to shock and hae morrhage as a result of the injuries sustained by the deceased. He exhibited the injury report as Exhibit No. 1.

9. Now the question is as to, who caused the fatal injuries. Except PW3 and PW5, none of the prosecution witnesses claimed to have seen the occurre nce. Though PW2, PW3, PW4 and PW5 claimed that the deceased, on being asked, had disclosed about the involvement of the appellants, the learned Trial Judge foun d the said dying declaration to be shaky and as such refused to accept the same. The FIR, which was lodged by PW2 i.e. the son of the deceased, i s silent about the dying declaration. Admittedly, the FIR was lodged after the d eath of the deceased. Therefore, failure to mention about the dying declaration, in the FIR, raises doubt about the prosecution version regarding dying declarat ion. PW2, PW3, PW4 and PW5 who claimed to have met the deceased, immediately aft er the incident, stated that, on being asked by them, the deceased had disclosed that he was assaulted by the appellants. But PW6, who carried the deceased from the place of occurrence to the Highway did not whisper anything about the dying declaration. Even Mr. Martuj Ali Miya (PW8), who also met the deceased in the i njured condition did not state anything about the dying declaration. From the evidence, on record, more particularly the evidence of PW3, PW6, it is found that the deceased was brought to the Highway from the place of occurrence in a boat and after arriving at the Highway, the deceased had disclosed about th e involvement of the appellants. When the deceased was brought to the Highway, P W2, PW3, PW4, PW5 and PW7 met the deceased on the Highway. At that time, PW6 i.e . the boatman and PW8, were also present. Therefore, failure of PW6 and PW8 to s tate anything about the dying declaration, raises doubt about the veracity of th e evidence given by PW2, PW3, PW4, PW5 and PW7 regarding the dying declaration. Therefore, the learned Trial Judge rightly refused to rely on such dying declara tion. 10. From the evidence of PW2, i.e. the informant, it is found that e xcept PW3 and PW5, none were present at the time of the incident. This witness a rrived at the place of occurrence after the incident i.e. after the deceased was brought to the Highway in a boat.

11. Mr. Sarfat Ali (PW3) stated that just before the incident, he wa s harvesting in the place of occurrence and when the deceased, on his way to the fish market, stopped to talk with him the appellants, surrounded the deceased a nd assaulted with dagger. According to this witness, hearing alarm raised by him , other people came to the place of occurrence and the accused persons fled ther efrom. He further stated that he along with Sukur Ali (PW6) carried the deceased , in injured condition, to the Highway and in the meantime Tamez Ali (PW5), who also sustained injury, rushed to the house of the deceased to give the informati on. So from the evidence of this witness it is found that he along with PW6 had carried the deceased to the Highway. 12. Mr. Tamez Ali deposing as PW5 stated that, when he was harvestin g paddy at the place of occurrence, the deceased, who appeared there was assault ed by the accused persons. He stated that Mazibar Rahman had assaulted the decea sed on his head with a dagger and Azmat Ali had assaulted him with a lathi on hi s leg and that accused Hasmat Ali had assaulted on his left hand. According to P W5, the other accused persons had assaulted the deceased with their hands and fe et. He further stated that when he had intervened, the accused persons had assau lted on his left hand. He further stated that he rushed to the house of the dece ased to give the information. He also stated that after returning from the house of the deceased, he found that the deceased was brought, in a boat by PW6 and P W3. Both PW3 and PW5 stated that the deceased was brought by Sukur Ali and Sarfa t Ali aforesaid. According to PW3 and PW5, the incident took place in their pres ence and the PW3 remained with the deceased in the place of occurrence, while PW 5 had rushed to the house of the deceased to inform the members of the family. 13. Contradicting the said evidence given by PW3 and PW5, Sukur Ali (PW1), in whose boat the deceased was brought to the Highway stated that when he was laying net for catching fish, on the date of occurrence, hearing alarm rais ed at a little distance proceeded to the place of occurrence with his boat. Acco rding to this witness, after arriving at the place of occurrence, he found none except the deceased, lying on the paddy field, in injured condition and finding the deceased in unconscious condition, he carried him on his boat to the Highway , where he met PW2 i.e. the informant and PW5. He also clearly stated, in his cr oss examination, that the deceased was in unconscious condition. The evidence of this witness remained undemolished. Therefore, from the evidence of PW6, it is clearly found that the deceased was found, lying alone, at the place of occurren ce. PW6, who did not whisper anything regarding dying declaration also did not s tate anything about the presence of PW3 at the place of occurrence or near the i njured. Therefore, the evidence of PW3 and PW5 that they were present at the tim e of the occurrence and that the PW3 had carried the deceased, along with PW6, f rom the place of occurrence lacks corroboration. If PW3 along with PW6 had carried the deceased to the Highway, there was no reason for PW6 not to disclose about the presence of PW3. Therefore, it is d oubtful as to whether PW3 and PW5 were present at the time of the incident. Anot her prosecution witness, namely Murtuj Ali Miya (PW8) stated that he along with Sukur Ali (PW6) carried the deceased to the Highway by boat and that the decease d was found alone. This witness also did not state about the presence of PW3 wit h the injured.

14. In view of the above, we find no force in the evidence of PW3 an d PW5, to believe that they saw the incident. The said discrepancies, does not i nspire confidence to believe that they were present at the time of the incident. Therefore, the evidence of PW3 and PW5 that they saw the accused persons assaul ting the deceased is not free from doubt. If PW3 and PW5 are not believed there is no substantive evidence against the appellants. Therefore, the impugned convi ction and sentences cannot be maintained. Hence, we find sufficient merit in the appeal aforesaid. Accordingly the appeals are allowed and the impugned convictions and sentences a re set aside. The appellants are acquitted and be set at liberty if not required in any other case.

15. For the sake of brevity, without repeating the discussions made in the Criminal Appeal No.93 (J) /2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357 A Cr.P.C., we make the fo llowing directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs.50,000/- be dep osited by the State Government with the District Legal Services Authority of Bar peta District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascer tain as to whether, there is dependant(s), who suffered loss and injury as a res ult of death of the deceased and also if such dependent(s) or legal representati ve(s) need any rehabilitation. (cid:29) Upon such enquiry, if it is found that the dependent(s), if any, need re (2) habilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It i s made clear that if the District Legal Services Authority, after due enquiry, a rrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/-, without delay, in favour of the State Government. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful. Return the lower court records.