High Court · 2012

The genesis of the prosecution case is traceable to the FIR date 3. d 20.3.96 lodged by Musstt. Hazera Khatun with the in-Charge of Chunari W.P. int imating that at about 11 a.m. on that day the persons named therein being armed with pistol, khukri and spear had trespassed into the compound of her house, whe reafter, one of them opened fire on her brother-in-law Abu Sama who was then eng aged in grinding wheat at his mill and had injured him in the waist. It was alle ged that the miscreants then tied both his hands to a post and, thereafter, tres passed into her house and one of the persons named Md. Omar Ali opened fire on h er husband for which the latter out of fear hid himself under the bed. The info rmant alleged further that the miscreants then broke open the walls of the house and took out her husband and killed him by hacking him in the neck with a khukr i. She disclosed that when she tried to put up some resistance the miscreants as saulted her also on her left hand and caused serious injuries. She alleged that thereafter the accused persons fastened the hands and legs of her husband and af ter piercing his head with a spear carried it on their shoulder towards the Brah maputra river. On the basis of the FIR eventually Goalpara RPS Case No. 14/96 w 4. as registered under Section 147/ 447/ 448/ 342/ 326/307/302/201 of the IPC. Out of the twelve persons named in the FIR though chargesheet was laid against all o f them, only eight including the present appellants were committed to be tried b y the Court of Sessions. Charge was accordingly framed against them under Sectio n 147/149/ 448/ 342/ 323/307/302/201 IPC to which they pleaded ’not guilty’ and thus the trial followed. The prosecution examined eleven witnesses including the doctors 5. who had attended to the injuries sustained by Musstt. Hajera Khatun (P.W.3) and Abu Sama Mondal (P.W.8) and had conducted the post mortem examination on the dea d body of the deceased Abdus Salam. In their examination under Section 313 Cr.P. C. the accused persons rigidly stood by their wholesome denial of the charges as well as of the incriminating circumstances laid before them. They also examined six witnesses in defence. By the impugned decision though three of them were ac quitted on the benefit of doubt, the present appellants were convicted and sente nced as above. It was noticed inter alia by the learned Trial Court that two of the named assailants Abdul Gofur and Omar Ali who had been chargesheeted could n ot be made to stand trial as they were absconders.

6. Before adverting to the rival arguments, it would be apt to brie fly outline the evidence on record. P.W.1, Dr. Ashad Ullah deposed that on 20.3. 96 he was the Medical & Health Officer at Chunari State Dispensary and had exami ned Musstt. Hajera Khatun, wife of deceased Abdus Salam and that in the process detected the following injuries on her body: (cid:28)1. A lacerated wound was found on the back of the right elbow joint over the ul ner head. It was placed transversely and was covered with fresh wet clot. It was 2 cms in length and depth was full thickness of skin. The surrounding area of t he wound was slightly swollen and tender.

2. A lacerated wound of 1.5 cms length and skin depth was found on the lateral a spect of the little finger of right hand at its root. It was placed obliquely an d was covered with fresh wet clot. The surrounding area of the wound was lightly swollen and tender. (cid:29). This witness proved his report to the above effect as Exhibit-1. According to him, the injuries were simple in nature and were caused by some blu nt weapon. P.W.2, Dr. Abdul Hussain Ahmed who on 20.3.96 was the Senior Med 7. ical & Health Officer at Goalpara Civil Hospital testified to have examined Abu Sama and stated that in course of the process the following injury was found on the body of the injured:- (cid:28) Bullet injury in the back (sacral region). Only entry wound was present. No neurological deficit. No loss of power of muscles. X-Ray shows the bullet in sacral region implanted in bone. It was not possible t o remove by operation. Nature of injury:- Bullet injury, grievous and recent origin. (cid:29) his witness proved his report as Exhibit-2. In his opinion, the injury was grievous and of recent origin. T

8. P.W.3, Musstt. Hazera Khatun, the informant and the wife of the deceased stated on oath that she knew all the accused persons by name and face. She deposed that at the time of the occurrence i.e. 11 a.m. in the morning while she was in her house, Omar, Gofur, Salam, Kader, Nur Mondal, Hajo Saddar @ Haja rat Ali, Motiur, Samsul, Ajahar and few others came to her house and all of them approached towards the mill situated in the campus where her brother-in-law Abu Sama was engaged. According to this witness, they shot at Abu for which he sust ained injury. According to her, the accused persons then tied up Abu Sama and th en turned towards her house. She deposed that out of the trespassers, Gofur and Omar entered the house and the others remained outside. She stated that her husb and was also shot and was taken out of the house, whereafter, accused Omar and G ofur severed his head from the body by a sharp cutting weapon. She stated that w hen she tried to resist the attack on her husband she was also assaulted by a ’d ao’ for which she sustained injury on her left hand. This witness stated further that the other accused persons assaulted her husband with lathi and fala and th en accused Gofur carried his (deceased) head on the top of a fala and the others took away his body towards the river. She proved the FIR, Exhibit-3. In her cross-examination, this witness admitted that at the time of the occurrence there was a heavy sandstorm. She stated that at that time her son Hutu aged four years and her daughter Nur Bhanu aged about 12 years were pr esent in the house along with her brother-in-law Samsul who on seeing the accuse d persons fled therefrom. She disclosed that there was a road in front of her ho use with the village Mosque nearby. The witness stated that there were four hous es within the campus and the mill was adjacent to the road. She deposed that the houses of Sukur, Asaruddin, Haseruddin and Jahar were situated on the eastern s ide of her house. According to her, she was accompanied to the police station by her two children and one male person. She stated that the ejahar was written in the police station by one person who was not known to her. She further stated t hat accused Salam, Gofur, Kader and Omar were friends of her husband and used to visit her house now and then. She also referred to a past incident in which acc used Gofur, Salam and Kader had assaulted her husband. She denied the suggestion that her husband had committed dacoity along with accused Omar, Gofur, Kader an d Salam on many occasions and that due to mutual differences there used to be qu arrel amongst them. The witness further disclosed that at the time of the occurr ence a meeting was in progress in the house of one Amir nearby. She also referre d to a past incident involving the accused persons in which she along with her h usband were witnesses. She, however, could not recall as to who had carried the dead body of her husband after his murder. She denied in specific terms that she was ever treated in any hospital for any injury sustained by her.

9. P.W.4, Musstt Sofia Khatun, wife of Abu Sama, a neighbour of the deceased stated that at the time of the occurrence she was busy in her househol d works and her husband was working in the mill situated in the common campus. S he testified that at that time accused Omar, Gofur, Salam, Kader, Nur Mondal, Ha je Saddar @ Hajarat, Samsul, Motiur, Ajahar and few others trespassed into the m ill and fired at her husband for which the latter sustained injury in his waist. The witness stated that the injured was then tied up whereafter the assailants entered the house of Abdus Salam where he was sleeping by breaking open the door and fired at him. She deposed that thereafter all the accused persons entered i nto the house and took out Abdus whereafter Nur Mondal, Hajo Saddar, Motiur, Sam sul and Ajahar assaulted him and some of them severed his head from his body and subsequent thereto Omar pierced his head with a ’fala’ and along with others t ook away the dead body towards the river. In cross-examination, this witness affirmed that there were four houses in the common campus in which the mill was also situated. She stated tha t at the time of the occurrence she was standing in the courtyard. She deposed t hat Omar had a pistol in hand and Gofur a dagger whereas the others persons were armed with lathi and fala. She stated that Omar and Gofur first entered the hou se followed by others. She stated that her husband was tied up to a post of the mill. She claimed to have seen the incident through the window. She claimed to h ave seen the happenings inside the house of Abdus Salam as the wall thereof was broken by the accused persons while entering the same. She, however, admitted o f not having seen as to who had inflicted the cut injury on the deceased. She al so admitted of not seeing as to who had carried the dead body of the deceased. S he also referred to an incident of dacoity in her house about 1/ ‰ months prior to the occurrence in which Omar, Gofur, Salam and Kader along with others were involved.

10. P.W.5, Md. Sukur Ali on oath identified the accused persons and stated to have seen Omar, Gofur, Salam, Kader, Nur Mondal, Haje Sattar, Matiur, Ajahar and others carrying the dead body of Abdus Salam by the road. He stated t hat at that time he was in his paddy field abutting the road and had seen that t he head of Abdus Salam was severed and was being taken separately by Gofur being impaled in a fala. In cross-examination, while disclosing that he was the nephew of the deceased and that at time of the occurrence there was a dust storm, this wi tness conceded that he fled out of fear. According to him, there was no villager on the road at that time due to the dust storm. He reiterated seeing Omar and G ofur carrying the dead body of Abdus Salam.

11. P.W.6, Samsul Haque stated that at the time of the occurrence he was sleeping in the house of Abu Sama and was awakened by a commotion including a gun shot. He stated to have seen Omar, Salam, Kader, Nur Mondal, Matiur, Sams ul Haque and Ajahar assaulting Abdus Salam. He also deposed that the assailants cautioned him for which he fled from the place of occurrence. He also stated to have seen injuries on the body of Abu Sama, his brother. in the house of Abu Sama for about six months prior to the occurrence. In cross-examination, this witness disclosed that he was staying

12. P.W.7, Musstt Harida Begum testified that on the date of the occ urrence she was inside the house of Abu Sama and came out on hearing the sound o f gun shot. She stated to have seen Omar, Salam and Kader tying Abu Sama. The wi tness stated that she was cautioned by Gofur for which she went inside the house . The witness further stated that thereafter Omar, Gofur, Salam, Kader, Nur Mond al, Samsul, Ajahar and Matiur entered the house of Abdul Salam and took him out forcibly. She deposed that Abdus Salam was thereafter killed by the miscreants a nd his head was severed whereafter Gofur pierced it on a fala and took away the same. According to her, the dead body was carried by others. In cross-examination, this witness disclosed that there were wal ls on all sides of the mill. P.W.8, Abu Sama Mondal, the brother of the deceased stated on oa 13. th that on the date of the occurrence at about 11/11.30 a.m. while he was workin g in his mill, 10/15 persons including, Omar, Gofur, Hajo Saddar @ Hijarul Ali, Nur Mondal came there and Omar fired a shot from his pistol that he was carrying which hit him in his waist causing injury. The witness stated that thereafter t he miscreants entered the mill and fastened him to a post. He further stated tha t subsequent thereto they went to the house of Abdus Salam where they fired shot s as well. According to this witness, at that time he managed to escape and late r on was taken to the Goalpara Civil Hospital for treatment. He stated that Abdu s Salam was in the process killed by the assailants. In cross-examination, this witness reiterated that Omar, Gofur a nd Salam were friends of the deceased and that they were in visiting terms. He a lso referred to a past incident in which Omar and Gofur had assaulted Abdus Sala m and had thrown him in a pond.

14. P.W.9, Aditya Kalita who on the date of the occurrence was poste d at Chunari W.P. deposed to have received the FIR from Musstt. Hajera Khatun wh ereafter he forwarded the same to the Pancharatna RPS for registering a case. He proved the FIR as Exhibit-3. In cross-examination, this witness disclosed that he did not vis it the place of occurrence immediately after receipt of the FIR but did so on th e following day at about 8 a.m. along with the police of Pancharatna RPS.

15. P.W.10, Md Tazmul Hussain stated that on 13.9.97 while he was po sted as the Officer-in-Charge of Pancharatna RPS, he received the Case Diary of this case from his predecessor and on going through the same, he found that the witnesses in connection therewith had already been examined. He deposed that the accused persons had not been arrested but they appeared before him after surren dering in Court. He stated to have submitted the chargesheet which he proved as Exhibit-4.

16. P.W.11, Surendra Nath Hazarika on oath stated that he on 21.3.96 was posted as the Officer-in-Charge of Pancharatna RPS and that on receiving th e FIR (Exhibit-3) from the Officer-in-Chuarge of Chunari Out Post he registered a case and took up the investigation thereof. He stated to have visited the plac e of occurrence and examined the witnesses. He also testified to have seized a b undle of blood stained jute sticks vide Exhibit-5. He deposed that he had sent t he injured Hajera Khatun and Abu Sama to the doctor for medical examination. Ac cording to him, he was transferred while the investigation was in progress for w hich he did hand over the Case Diary to his successor Tajmul Hussain who complet ed the same. In cross-examination though this witness claimed to have prepare d the sketch map of the place of occurrence, he admitted that the blood stained jute sticks had not been sent to the Forensic Science Laboratory for examination to ascertain as to whether those contained human blood or not. He conceded of n ot having examined the children of the deceased or visiting the Goalpara Civil H ospital to enquire about Abu Sama who was undergoing treatment there. He, howeve r, claimed to have examined Hajera Khatun on 21.3.96 at Chunari.

17. The defence witnesses, namely, Md Sadar Ali Mondal, Md Chandu M iah Bepari, Md Bhasa Molla, Md Nazmul Hoque Joddar , Md Sahadat Aliand Dr. Karm eswar Rabha have by their individual versions sought to project the plea of alib i of the appellants Ajahar Ali, Samsul Haque, Hazarat Ali, Nur Mondal and Motiur Rahman. Whereas D.W. 1, 2,3,4 and 5 deposed on oath that the accused/ appellant s Ajahar Ali, Samsul Haque and Nur Mondal were in their village on the date and at the time of the occurrence, D.W. 6 testified that the appellant Matiur Rahman at that time was under his treatment in his clinic at Boitamari Nitya Bazar. Th e cross-examination of these witnesses, however, discloses that the villages whe re these accused/ appellants were said to be present on the date and at the time of the incident were on an average located at a distance of 3 to 10 kms. from t he place of occurrence intervened by a river.

18. Mr Choudhury has insistently argued that the prosecution case on the face of it being highly improbable lacks in credibility and, therefore, the conviction of the accused/ appellants is obviously illegal and is liable to be interfered with. While contending that all the prosecution witnesses though had consistently implicated Omar Ali, Abdul Gofur, Abdul Kader and Abdul Salam in th e incident, their testimony is replete with contradictions vis-à-vis the appella nts and, therefore, the learned Court below ought not to have held them guilty o f the offences with which they had been charged. Referring to the testimony of P .W.3,4,5,6, 7 and 8, the learned senior counsel has urged that a conjoint readin g thereof demolishes the prosecution case to its core as a highly improbable one and, thus, the impugned judgment and order warrants interference in the interes t of justice. According to him, the locality being densely populated, the allege d incidents in succession over a considerable period of time could not have gone unnoticed by the inhabitants lodged nearby and, thus, the omission on the part of the prosecution to examine any independent witness has rendered its case extr emely doubtful. The learned senior counsel has urged that having regard to the p ast events involving the deceased and the four others, namely, Omar Ali, Abdul G ofur, Abdul Kader and Abdul Salam indicating their joint complicity in the offen ce of dacoity, the incident in all probability was a result of internal feud for which the accused/ appellants by no means could be held culpable. Referring to the evidence of P.W.4 and 5 who admittedly were near relatives of the injured/ deceased, Mr Choudhury insisted that their conduct of remaining mute spectators before fleeing from the place of occurrence is unbelievable, thus, rendering the prosecution case wholly untrustworthy. The omission of P.W.7, Harida Begum to i nform any one of the incident in which her brother was killed also reinforces th is proposition, he urged. While underlining that the injuries said to have been found on the injured have been wholly neutered by their oral testimony, Mr Choud hury has maintained that the prosecution case vis-à-vis the appellants is a myth and is liable to be rejected. Further, as the evidence of the defence witnesses proved the absence of the appellants from the place of occurrence on the date a nd at the time thereof, the learned Trial Court fell in obvious error in returni ng a finding of guilt against them, he urged. The learned senior counsel relied to buttress his arguments on the decision of the Apex Court in Kuldip Yadav & Or s. -vs- State of Bihar, (2011) 5 SCC 324. Mr Das in his emphatic reply submitted that the evidence of P.W. 19. 3,4 and 8 in particular provide a consistent and flawless version of the inciden t and the same having remained undemolished, the learned Trial Court was perfect ly justified in convicting the appellants. According to the learned Addl. Public Prosecutor, non-examination of any other witness from the locality per se did n ot render the prosecution case unworthy of any credit, more particularly, in the face of the overwhelming testimony of the eye witnesses. Rejecting the proposit ion that the evidence of the prosecution witnesses ought to be discarded on the ground that they are the relatives of the deceased and the injured, Mr Das has u nderlined that the defence plea of alibi is wholly unacceptable. According to hi m, the minor omissions and contradictions in the versions of the prosecution wit nesses examined after a lapse of 6/7 years from the date of the occurrence are i nconsequential and to the contrary lend credence thereto. Considering the brutal ity of the attacks resorted to by the appellants in a group and the savage act o f severing the head of the deceased and carrying it on the blade of a spear, the conviction and sentence is fully justified and if interfered with, would result in travesty of justice, he insisted. We have extended our anxious consideration to the materials on r 20. ecord and the rival arguments on the basis thereof. Whereas the case of the pro secution is that the appellants along with others named in the FIR had formed an unlawful assembly and in a body had trespassed into the compound of the decease d and the injured Abu Sama Mondal being armed with pistol and other deadly weapo ns and had thereafter assaulted Abdus Salam to death and had seriously injured P .W.3 and P.W.8, the endeavour of the defence has been to project the account of the incident narrated by its (prosecution) witnesses to be inherently untrustwor thy and unbelievable.

21. The evidence of P.W. 3, 4, 5, 6, 7 and 8 who have been offered a s eye witnesses to the sequence of events constituting the incident as a whole o n a close scrutiny demonstrates an inseverable cohesion in texture vis-à-vis the appellants and, amongst others, four persons namely, Omar Ali, Abdul Gofur, Abd ul Kader and Abdul Salam in common. These four persons though had been chargeshe eted, could not be tried as they had absconded. This notwithstanding, having reg ard to the fact that the appellants were charged also under Section 147 and 149 of the IPC, their culpability for the offence of trespass, wrongful confinement, assault, attempt to murder and murder as members of the unlawful assembly, in our opinion, stands proved. Though P.W.3, 4, 5, 6, 7 and 8 in their narration of the inciden 22. t had marginally contradicted themselves in the minutest details thereof, as a w hole their testimony is not liable to be discarded so as to extend any benefit o f doubt to the appellants. By dint of their membership of the unlawful assembly involved in the commission of the offences for which they had been charged, thei r individual overt acts of assault are not of any decisive significance. The ver y fact that the appellants along with others had been identified and named in th e FIR, in our opinion, lends credence to the prosecution case. Though having reg ard to the location of the place of occurrence and the evidence on record that t he areas was sufficiently populated, the prosecution could have examined witness es from the neighbourhood, its omission in this regard per se in the face of the otherwise cogent and convincing evidence on record, in our comprehension, is no t fatal. The findings recorded by the medical witness do conform to the manner o f assaults and the weapon(s) wielded therefor.

23. The emphasis on behalf of the appellants on the contradictions i n the evidence of P.W.3 about the place of injury and her denial of having taken any treatment in the hospital per se does not destroy the substratum of the pro secution case. The conduct of P.W. 4,5 and 7 in remaining as mute spectators in the face of the furious acts of violence by an armed body of twelve assailants a lso does not render the prosecution case unbelievable. The defence plea of alib i does not convincingly weigh with us so much so to discard the otherwise well k nit and undemolished testimony of the eye witnesses and that of the injured esta blishing the complicity of the appellants. While analyzing the evidence on recor d either oral or documentary, one ought not to take leave of the realities of li fe and reject the otherwise admissible materials of probative worth by adopting a hypercritical and over suspicious approach.

24. On a cumulative consideration of the evidence on record, we are, thus, of the firm view that the prosecution has been able to prove the charges against the appellants as framed. The factors taken note of by the Hon’ble Apex Court in Kuldip Yadav & Ors. (supra) in interfering with the conviction of the a ppellants therein are essentially traceable to the contextual facts. No analogy therefrom can be drawn to the facts of the present case. The evidence of the pro secution witnesses referred to hereinabove does not suffer from any one or more of the vitiations noticed in that decision.

25. sed. The appeals, therefore, in our view lack in merit and are dismis