High Court · 2012

2. The brief facts, leading to filing of this appeal are as follows -On 7. 3.2005 at about 5.15 P.M. PW-1 Nurul Amin lodged FIR stating therein that whilst Munshi Hurmuj Ali was sitting in the tea stall of Md. Mortuz Ali (PW-8), situat ed at Baniara Para Garaimari Bazar, accused Abdul Salam, Md. Rejjak Ali, Md. Sid dique Ali, and Sakimuddin allegedly killed said Munshi Hurmuj Ali by stabbing hi m with dagger and fled away. Nur Amin (PW-1) son of the deceased lodged the FIR on the same day with Barpeta Police. Accordingly, Barpeta Police registered a c ase and launched investigation. During investigation the Investigating Officer of the police visited the place o f occurrence, performed inquest on the dead body, forwarded the dead body for po st mortem examination, collected evidence and arrested accused Rejjak Ali and se ized one dagger, which was found with Rejjak Ali. Later, Police collected oth er evidence, obtained the post mortem report, seized the cloths of the deceased and arrested accused Abdul Salem, Siddique Ali, Abbas Ali and forwarded them to judicial custody. On completion of investigation, Barpeta Police submitted the c harge sheet alleging commission of offence under Section 302 IPC, against accuse d Abdul Salem. However, as against othe accused persons named in the F.I.R. and submitted final report. On submission of charge sheet against only accused Abdul Salam, the lea 3. rned C.J.M. Barpeta committed the case to the Court of the learned Sessions Judg e, Barpeta for trial. During trial, the learned Sessions Judge framed formal charge against t 4. he accused appellant under Section 302 I.P.C. On reading over and explaining the charge aforesaid the accused appellant pleaded not guilty and claimed to be tri ed. The prosecution side examined as many as 12 (twelve) witnesses to estab 5. lish the charge aforesaid against the accused-appellant. The defence stand of th e accused is that of total denial of the charge. On conclusion of the trial, the learned Sessions Judge, Barpeta convicted the accused appellant under Section 3 02 I.P.C., giving rise to this appeal.

6. ant and Mr. Z. Kamar, learned Public Prosecutor for the State. Heard Mr. M.A. Sheikh, learned counsel appearing for the accused appell

7. The learned counsel for the appellant submitted that the prosecution si de miserably failed to prove the charge under Section 302 IPC against the accuse d appellant beyond reasonable doubt; the accused-appellant is entitled to be acq uitted of the aforesaid charges. In order to appreciate the arguments advance by the learned counsel for the appellant as well as the respondent State, we would like to marshal the core of the prosecution evidence. On examination of the materials on record and the evidence of the wit 8. nesses to the occurrence, it appears that P.W.8 Mortus Ali @ Doraj Ali (Lengra), P.W.7 Kabir Hussain, P.W.3 Amser Ali, were the eye witnesses to the incident.

9. According to P.W.3 Amser Ali, on the day of occurrence at about 5.00 P.M . he along with Kabir Hussain (PW-7). They were taking tea in the tea stall of M ortus Ali (PW-8) at Garaimari Bazar. At that time, Hurmuj Munshi (deceased) came and took his seat to his right side in the same bench placed in the tea stall m eant for sitting of customer. After about 15 minutes when PW-3 was taking tea wi th Kabir (PW-7). Suddenly, Kabir shouted saying Salam stabbed Munshi. PW-3 took a turn and saw that accused Salam was running away. PW-3 held injured Munshi. T he injured himself also caught on his right chest. Mortuz, PW-8, owner of the tea stall also came. They all three supported the injured. Kabir followed and chased accused Salam. After about 10 minutes Munshi expired on the spot. P.W. 3 further stated that at the time of occurrence, he along with PW-7, PW-8 and th e deceased were inside the tea stall. Immediately, a good number of people gath ered at the place of occurrence seeing the blood, they came out of the tea stall . Later, police came to the place of occurrence. PW-3 was produced before Magist rate, where he made his statement under section 164 of Cr.P.C.

10. In the cross examination P.W 3, clearly stated that he did not see the act of stabbing though, he was sitting in the same bench with the victim. W hen the victim was about to fall down they caught him. Nurul Amin, (PW-1) the so n of the victim, who came to the tea stall was unknown to PW-3. As it was bazaa r day, many people had gathered in the bazaar and there were some adjacent tea s tall, grocery shop etc. near the tea stall of Mortuz Ali.

11. P.W.7, Kabir Hussain, another eye witness, stated in his evidence t hat on the day of occurrence i.e. on 7.3.2005 at about 5.10/5.15 P.M. occurrence took place in the tea stall of Mortuz Ali (PW-8). At the time of occurrence, P W-7 along with Amser (PW-3) was taking tea in the tea stall of Mortuz Ali. PW-7 was sitting on the bench towards southern side, and Amser (PW-3) was sitting on the eastern side of the bench. While they were taking tea, just then, Hurmuj Mu nshi came and took his seat at the bench of Amser. Amser was sitting facing lit tle capsize facing towards west. In the meantime, accused Salam entered into th e stall and stabbed two dagger blows on the person of Hurmuj. PW-7 raised alarm saying that Salam caused stab wound on Hurmuj. Accused Salam immediately ran aw ay. Thus creating hue and cry, PW-7 also ran behind him for a little distance, b ut he could not apprehend accused Salam. PW-7 returned to Hurmuj Munshi. Accord ing to PW-7 at that time, he along with Amser, (PW-3) Mortuz (PW-8) and Hurmuj M unshi (deceased) were at the tea stall. P.W.7 also had noticed bleeding from th e chest of Hurmuj Munshi. Nevertheless, at their shouting for help good number o f people gathered at the place of the incident. On the same day, police visi ted the place of occurrence and interrogated him. 12. It is evident from the cross-examination of PW-7 that Amser (PW-3) came along with him to the tea stall. The witness also described topography of the lo cation of stall of Mortuz, which can be seen even from outside. He knew Salam pr ior to the occurrence. No other people attempted to apprehend the assailant Sala m. The dagger was about 10 (cid:29) in length. He did not see Nurul Amin there. Hurmuj was not related to him but was a neighbour. P.W.8 Mortuz Ali @ Doraj Ali alias Lengra, in his evidence, revealed that he has a tea stall at Garaimari Bazar. Hurmuj Ali was murdered in his tea stall in between 5/5.10 P.M. Amser and Kabi r were taking tea at his tea stall at the time of occurrence. After a few minut es, Hurmuj Munshi came and took his seat inside his tea stall and after some ti me, accused Salam came and gave two dagger blows on the right side of chest. Im mediately, Kabir started shouting and raised hue and cry by uttering that Mun shi has been killed by Salam. At that time, PW-8 was standing near the cash drawer, at a distance of about 3 cubits towards west of Munshi. He (PW-8) immediately came to Munshi. Hurmuj told him to grasp at the place of in jury.

13. Among 12 witnesses of the case, these three witnesses were found to be t he eye-witnesses in the case. In addition to their evidence, P.W.1 Nur Amin, so n of the deceased, deposed that at the time of occurrence, he was in the shop of Kalam in the market at a distance of 40/50 meters from the place of occurrence and suddenly, he saw running of people. In the meantime, a minor boy told him th at Munhsi Sahab has been killed. Getting information, he also ran to tea stall of Mortuz and found that his father was lying on a bench in the tea stall. Later he came to know that Salam stabbed his father. He noticed blood stain on the f ace of the victim. For some time, he was lying unconscious and when he regained senses, he saw good number of people gathered there. He proved his ejahar, Ext. 1. PW.2 Saiful Islam, also confirmed that the occurrence took place in the tea stall of Doraj Lengra in between 5/5.15 PM. P.W.2 was at a distance of 7/8 yards from the tea stall on the bazaar path Charali towards north-east. Suddenly, som e person informed him that Salam stabbed Hurmuj Ali and he also saw that Salam w as running away. Then, he went to see the injured and noticed stabbed wounds on the person of the injured. P.W.6 is Dr. Bhupesh Choudhury, who performed the post mortem examinatio 14. n on the dead body of Hurmuj Ali, aged about 78 years found two penetrating inju ries on the right side of the chest near right axilla, deep up to lung cavity al so found blood clot on the right lung cavity. In his opinion, the cause of deat h was shock and hemorrhage as a result of injury sustained. P.W.9 is Dowat Ali. He heard about murder of Hurmuj Ali but before about 15/20 minutes of murder of Hurmuj, one Rejjak the elder brother of accused Salam started running hither and thither near his shop armed with a dagger. Seeing his temperament, he along wi th 4/5 other persons apprehended Rejjak and he along with Amser forcibly took the dagger from hands of Rejjak and after 10/15 minutes he heard that Hurmuj wa s killed at bazaar.

15. P.W.10 is one Abdul Barek, a vegetable seller, who sold his vege tables at a distance of about 100 metres from the tea stall of Doraj Lengra. Af ter selling his vegetables, he was standing at his own place of selling vegetabl e and at that time, he saw that Salam was running away by his side taking a dagg er at his hand towards west. In the meantime, he heard that Hurmuj Munshi was k illed. So, he proceeded to the tea stall of Doraj and found huge a gathering of the people.

16. From the evidence on record, it appears that the occurrence took p lace in broad day light, on a bazaar day in a tea stall. That too, in a tea st all, where Mortuz @ Mortuz Lengra. Kabir and Amser were the eye witnesses to th e occurrence. When the incident of stabbing took place Amser Ali was sitting together on the same bench along with the deceased, but he sat in a little cap sized manner turning his back towards Hurmuj Munshi, due to which, may not hav e seen the actual act of stabbing . Rightly so, as because, the accused had com e and entered suddenly in an open tea stall of a bazaar with preparation. No mu ch time was required to the accused to cause two stab wounds. The sequence of ev ent shows that within a moment the occurrence took place, Kabir, (PW-7) cried th at Munshi has been stabbed. So, hearing hulla made by Kabir, turning his head A mser saw that Salam rushing out from the tea stall taking a dagger in his hand. Thus, as rightly assessed by the learned trial Court evidence of witness Amser Ali is forthright and there is no exaggeration of fact in his testimony. On th e other hand, it appears from the evidence of Kabir P.W.7 that he saw the assail ant Salam entering into the tea stall of Mortuz and also saw accused Salam immed iately thrusting two injuries on the person of Hurmuj Munshi. Accused Salam ran away from the tea stall immediately just in front of his eyes. Kabir imme diately shouted that Hurmuj has been killed and by saying so, this witness had t he courage enough to follow the assailant Salam who wa holding a dagger to some extent. Thus, from the evidence of these three witnesses particularly, Kabir H ussain, Amser Ali and Mortuz @ Doraj, there was none inside the tea stall except these three persons and victim and suddenly, assailant entered into the tea sta ll and caused two stabbed wounds on the person of the victim. 17. The learned counsel for the appellant submitted that the eviden ce of eye witnesses are contrary to each other, so, their evidence cannot be rel ied upon. However, on careful scrutiny of the evidence on recoored , we find t hat the witnesses Kabir, Mortus and Amser corroborated each other to establish the charge against the accused . All these witnesses Kabir, Mortus and Amser, clearly named the 18. accused appellant, as the assailant of Hurmuj Munshi with a dagger while in he was sitting in a tea stall. From the evidence of Amser, Mortus and Kabir, it tr anspires that the informant P.W.1 was not a eye witness and there is nothing i n his evidence to show, as to who had reported him about the occurrence. As righ tly observed by the learned trial Court that while Kabir followed the assailant after the incident, Mortus and Amser laid Hurmuj Munshi on the bench of the tea stall where he breathed his last and expired. Within short period, Amser retu rned and in the meantime, good number of people also gathered there. The evidenc e of Amser and Mortus fully corroborate each other in material particulars . P.W .1 found the dead body lying on the bench of tea stall of Mortus on his arrival at the spot. Though the facts stated in the ejahar was exaggerated, but the fact remains that Hurmuj Munshi was killed on the spot by the accused by causing two stab wounds . The inju ries sustained by the deceased as stated by the witnesses are corroborated by ev idence of doctor P.W.6. Two penetrating injuries on the right side of the chest near right axilla, deep upto lung cavity: blood and blood clots were found on th e right lung cavity by P.W.6 .

19. From the totality of the facts and circumstances discussed abov e, we are of the considered view that the prosecution has been able to prove the charge under section 302 I.P.C. against the accused appellant beyond all reason able doubt. Consequently, the appeal being devoid of merit, stands dismissed.