High Court · 2012

2. The prosecution case in brief is that on 29.10.2000, around 7 AM in the morning, the deceased Abdul Mazid Mazumdar left home carrying with him an amount of Rs.60,000/- to hand over to the accused Anowar Hussain and Jalaluddin in exc hange of a job to his eldest son. Around 12 noon, his beheaded body was found at the embankment of Nalubak. On receiving the information, the first-informant Ma zaraf Ali Mazumdar, the brother of the deceased, lodged an ejahar with the offic er-in-charge of Lala police station, who, in turn, registered a case and launche d an investigation. The investigating police officer, on completion of investiga tion, submitted charge-sheet against the four accused persons under Section 394/ 302/34 IPC..

3. During the course of trial, the learned Sessions Judge, on a perusal of the materials on record and after hearing learned counsel for both the parties, framed a formal charge under Sections 394, 302 and 34 IPC against the accused-ap pellants, namely Hussain Ahmed Mazumdar, Anowar Hussain Barbhuiya, and Fakar Udd in Barbhuiya. When the charge was read over and explained to the accused-appella nts, they pleaded not guilty and claimed to be tried,. However, it may be mentioned here that after the framing of charge, one of the a ccused, namely Jalal Uddin Barbhuiyan had absconded and hence the case against h im was stayed, declaring him as an absconder on proof of proclamation-and-attach ment order. The prosecution examined as many as seven witnesses in order to establish the ch arge brought against the accused. On conclusion of the recording of the prosecut ion evidence, statement of the accused persons under Section 313 CrPC, was recor ded. The specific plea of the accused persons was of total denial. The accused p ersons did not come forward to adduce their evidence in defence.

4. nced the accused-appellants as aforesaid, which triggered this appeal. On conclusion of hearing, the learned Sessions Judge convicted and sente

5. Learned counsel for the appellants submitted that the prosecution witnes ses are related to the deceased and their testimony was recorded by police after a long period of time, thereby obscuring the prosecution story. Learned counsel further submitted that the evidence of the prosecution witnesses as a whole do not inspire the confidence at all to convict the accused-appellants for commissi on of offence, as alleged against them.

6. On the other hand, learned Addl.PP, appearing for the State, contended t hat prosecution has clearly established the charge brought against the accused-a ppellants, and as such the conviction and sentence recorded by the learned Sessi ons Judge do not call for interference by this Court.

7. o adjudge the truthfulness of the prosecution case: Now, we would like to dwell on the deposition of prosecution witnesses t i) PW1 Mazaraf Ali Mazumdar, the brother of the deceased and the first-info rmant, deposed that since the dawn of 29.10.2002, he had been out of his home to purchase betel nuts and when he returned at 12 noon, his nephew(son of the dece ased) reported him that his father Abdul Mazid had gone to Rouarpar and that he had been smelling a suspicious stench about his father in the locality. The witn ess, accompanied by the villagers Safi, Saley and Saidul rushed to Rouarpar and found the dead body of his brother Abdul Majid lying on one flank of a path enci rcled by villagers. The witness further deposed that his deceased brother having had a negotiation with Jalal Uddin Barbhuiya for securing a job for his eldest son and it was agreed upon that the deceased would pay a total of Rs.80,000/- wi th an instant advance of Rs.15,000/- within 29.10.02, failing which the whole mo ney would stand forfeited. The witness was reported that on the fateful day, his deceased brother went to Rourpar to hand out the balance amount of Rs.65,000/- to the accused persons. When at the advice of the villagers the witness was abo ut to step in for the Gaon Panchayat to seek its advice, the Panchayat rushed to the police station and thereafter police came to the place of occurrence and th en he filed a formal ejahar. PW2, Saleh Ahmed Mazumder, the son of the deceased, deposed that he coul ii) d see the accused persons at the dock . The witness deposed that on 26.10.2002, the accused Anwar, Jalal Uddin and Hussain Ahmed came to their house and after h aving a discussion with his father about his employment, the assailants told his father that they would secure a job of school teacher for him and for which his father would have to pay a sum of Rs.80,000/- to them with an instant advance o f Rs.15000/-, to which his father agreed; accordingly, after taking the advance amount of Rs.15,000/- they went away with an advice to arrange for the balance a mount of Rs.65,000/-. The witness further deposed that for arranging the balance amount, his father proposed to sell a plot of land and accordingly approached o ne of the assailants Hussain Ahmed to purchase the same for a sum of Rs.1 lac, a nd as Hussain Ahmed agreed to pay only half the amount for the same, his father sold the said plot of land to one Taiyab Ali at Rs.92,000/-. The witness deposed that on learning about the proposal of sale of the p lot of land to Taiyab Ali, the father of the accused Hussain Ahmed requested his father not to dispose off the land to Taiyab Ali. Since his father did not acce de to the request, according to PW2, the relation between the two families was n ot good due to existing disputes. On 27.10.2002, the accused Anwar and Jalal came to their house and asked his fat her to give the balance amount of Rs.65, 000/- within the fixed date, failing wh ich the entire amount would stand forfeited. On the next day, the father of the witness somehow collected Rs.60, 000/- from Taiyab and on the next day when his father left for Nalubak ferryghat to give the amount to the accused, he was bein g followed by the accused Hussain Ahmed and Fakar Uddin. On reaching ferryghat, PW2 saw the beheaded body of his father lying on the side of a jungle. On date, Sri Majaraf Ali, the stepbrother of the victim and the father of the accused Hus sain lodged an ejahar with the police by suppressing the material fact, deposed by the witness. PW2 admitted that he did not state before the police during inve stigation. iii) PW3, Eklas Uddin(an independent witness) deposed that at the time of occ urrence, he was a resident of village Rongpur and as such, he could identify the accused persons at the dock. On receiving a telephonic message from one Azir Ud din of Silchar to be conveyed to his maternal uncle that his mother, residing at Rourpar, is seriously ill, the witness on the next Tuesday left for Rouarpar an d on reaching Nalubak, he saw four persons beating a person. The witness identif ied the said four persons at the dock. After seeing the said four accused persons assaulting the victim when th e witness asked them as to the reason for such beating, he was cautioned by the assailants not to get himself embroiled in the matter. Out of fear, he came bac k to his house and on the way near a river bank when he came across 3-4 persons, he informed them about the occurrence, but they did not pay any heed to, and wh en he reported the matter to Majaraf Ali, the father of the accused Anwar Hussai n, he was cautioned not to get himself entangled in the matter. PW4, Basir Uddin deposed that nearly 3 ‰ years back on the date of alleg iv) ed occurrence, around 8 AM, when he was proceeding toward his sister’s house loc ated at Bhobanipur village, on reaching the PWD road, near Nalubak, he saw on th e side of a jungle the four assailants namely Hussain, Jalal, Fakar and Anwar, i ncluding the deceased Majit Ali. On the way when the witness asked Abdul Majid a bout his destination, he was told that he was going to give a sum of Rs.60,000/- to the accused persons. On the same day, around 2 PM, the witness was informed by one Kabir that Majid was killed by the four accused persons at Nalua. On hear ing the incident, the witness rushed to the place of occurrence but could not fi nd the dead body as it was carried away by the police toward Amala. On reaching Amala, the witness saw beheaded body of the victim onto a vehicle and Majaraf Al i, the brother of the deceased, sitting at a nearby pan shop was writing an ejah ar and on being asked, he was cautioned not to make a fuss of it. v) lowing injuries on the person of the deceased: PW5, Dr K.Z. Choudhury, who had performed the post mortem, found the fol (cid:28)1) The head is decapitated from the trunk at the atlantoaxial joint on the back of the level of hairline and above the level of the hyvoid bone on the upper part f the neck in the front. The exposed raw area of the decapitated head measures 17.5 cm antero posterily and 14 cm transversely. The cervical vert ebra is found attached with the head and epiglottis found exposed. 2) The trunk is separated from the head serving the larynx above th e hyvoid bone, severing the oro-pharynx all the muscles vessels and the 2nd clev ical vertibra is found attached to the truck. The exposed raw area on the top of the trunk at the level of the upper mist neck measures 17.5 cm antero-posterior ly and 14 cm transversely. 3) The incised wound is found on the base of the back of the neck m easuring 14 cm x 5 cm x 5 cm running transversely. 4) One incised wound of size 5 cm x 3 cm x 3 cm is found towards 2 cm above of the wound No.3. 5) One incised wound is found on the upper part of the left side of the face at the level of the left eye and passing transversely the pinna of the left ear. The size of the wound is 10 cm x 3 cm x 2 cm. 6) One incised wound size 10 cm x 2 cm x 3 cm is seen on the depart ed head running transversely. 7) One incised wound of size 7 cm in length is seen merging with th e sound that decapitated the head on the back of the neck of the trunk of the he adless body. The spinal cord is served transversely at the level of the atlantoa xial joint (cid:29). In the opinion of the medical officer, the right and left external cardial arter ies and the right and internal Jugular veins are severed at the level of the upp er part of the leg, and the death was due to decapitation caused by slaughtering with a sharp weapon. vi) PW6, Abdul Motin Borbhuiya deposed that when he was preparing for going to mosque, Mojaraf sent his daughter to inform him that his brother Abdul Majid was killed by some Manipuri person at Rawarpur alias Nalubak. Immediate thereaft er, the witness rushed to Nalubak and on reaching there he saw beheaded body of Abdul Majid lying on a paddy field with Mojaraf and the police standing there. vii) PW7, Sri Harendra Chandra Das, Sub-Inspector of Lala police station and the investigating police officer deposed that on the advice of the officer-in-ch arge of police station, he visited the place of occurrence, recorded statement o f the witnesses, held an inquest on the dead body of the victim and sent the sam e to the civil hospital at Hailakandi for post mortem examination. The witness d eposed that on being interrogated, the accused Jalal Uddin, Anwar Uddin, Fakar U ddin and Hussain Ahmed admitted that while the victim was walking with money, th ey slit his neck with a dao. The witness further deposed that the accused Jalal Uddin discovered the weapon of assault(dao) from the bed of a nullah located at Rourkhal. However, the dao so seized was not sent for serological test to the F orensic Laboratory to ascertain whether the dao was at all used for committing t he offence alleged.

8. It is apparent from the evidence of the witnesses that the fact of the a ccused having discovered Dao was not corroborated by any of the prosecution witn esses. Except a bald statement of the Investigating Officer(PW.7) to that effec t there is no evidence of recovery of weapon of assault at the instance of the a ccused/appellant. By cross examining the witnesses in the Court, the defence ha s proved omission in the statement of PW2, 3, 4 and 6, since the material facts which was deposed by the witnesses in the Court, was not disclosed before the In vestigating Officer while giving their statements under Section 161 CrPC.

9. Although PW.3 is an eye-witness of the incident, he stated to have seen the accused persons assaulting the deceased, yet, there is no explanation as to why he had been silent for long period of more than a month to narrate the fact of assaulting the deceased by the accused-appellants. Admittedly, the statement of PW3 was recorded by police on 7.12.2002 whereas the occurrence had taken plac e on 29.10.2002. The fact of PW3 coming out of his residence to inform about th e ailment of the mother of Azir Uddin on receiving a telephonic call, does not inspire the confidence of the Court, more so when admittedly the witnesses, righ t from the inchoate stage of the incident, created a cloud over the prosecution case. More particularly, Basis Uddin PW.4, another important witness of the pro secution came forward to reveal the incident only on 26.11.2012. And other impor tant witness Abdul Motin (PW.6) gave his statement before the I/O only on 11.4.2 003.

10. When delay occurs in recording the statement of the witnesses by the I/O u/s 161 CrPC, the evidence of such witnesses is unreliable. In this connection t his Court in Sajad Ali -vs- State of Assam, reported in 1995(3) GLT 470 held tha t witnesses who were very much available in the vicinity were not examined by th e investigating officer u/s 161 of the Cr P. C. at an early date. Rather, their statement so recorded at a belated stage weakens the prosecution case.

11. Since, no justifiable reason is so advanced rather not a single word is spoken by way of explanation for this undue delay in recording their statement u /s 161 of the Cr PC, it rather leaves much scope as to infer with the strong con viction with regard to those allegedly material eyewitnesses telling falsehood o n material facts after a lapse of more than a fortnight at the instance of some of the interested persons as a result of which, as claimed, the accused appellan ts are falsely implicated. Relying upon the reported case in AIR 1971 SC 804 Ba lakrishna Swain-Vs-State of Orissa, it was submitted that unjustified and unexpl ained longer delay on the part of the investigating officer in recording the sta tement of the material witnesses, during the investigation of a murder case part icularly without giving any explanation for such delay renders the evidence of s uch witnesses unreliable. There is stamp of false hood so coming from the mouth of the prosecution witnesses and the evidence as it is, cannot thus be said to b e intrinsically reliable.

12. Though it is alleged that some amount of money was promised to be given by the deceased to the accused persons for arranging a job for his son, but the facts stated by the witnesses do not reveal that deceased was killed by the accu sed persons for the purpose of robbing off the money, which was carried by him t o pay to them. The witnesses, who were close relatives of the deceased appear to have given evidence to rope in the accused-persons for the commission of the of fence alleged.

13. Thus, in our opinion the prosecution miserably failed to establish the c harge under Section 302 IPC beyond all reasonable doubt. Consequently, the appea l preferred by the appellants succeeds. The judgment and order passed by the in the Court of Sessions Judge, Hailakandi, in Sessions Case No.38 of 2005 is set aside. The appellants in Criminal Appeal 10 of 2008 and 18(J) of 2008 be set at liberty forthwith, in connection with the case, if they are not required in any other case.

14. We record our appreciation of the service rendered by Mr Ajay Phuk an ,the learned Legal Aid Counsel in assisting this Court. Accordingly, we dir ect that an amount of Rs. 3,500/- (Rupees three thousand five hundred) only be p aid to the learned Legal Aid Counsel by the State Legal Service Authority as re muneration.

15. Send down the LCR forthwith.