High Court · 2012

The convict/appellant, by filing this appeal takes to the judgment dated 4.8.11 rendered by the learned Sessions Judge, Nalbari in Sessions Case No 05/09 whereb y he was convicted U/S 304 Part II of IPC and sentenced to suffer R.I. for 5 ye ars and to pay fine of Rs. 1000/- in default to suffer R.I. for 1 month. 2. Briefly stated the prosecution story runs as follows :- On 6.8.0 7 at about 9.30 PM the appellant caused grievous injury to Md. Kasim Ali by an i ron rod on his head on the road infront of his house. The injured Kasim Ali was removed to Mukalmua PHC and due to his serious condition he was taken to Gauha ti Medical College & Hospital (for short GMCH) where he succumbed to his injury in the night of 8.8.07. On the next day i.e. 8.8.07, FIR was lodged by the fat her of the deceased which was registered as Mukalmua PS Case No. 71/07 U/S 341/3 25/302 IPC. The investigation commenced leading to filing of chargesheet against the appellant U/S 341/304 IPC and committal to the court of Sessions, Nalbari. Charge was framed by the learned Sessions Judge U/S 302 IPC against the appellan t which on being read over and explained, he denied and pleaded not guilty dem anding trial. The prosecution examined as many as 11 witnesses including Medical Officer and the Investigating Officer and after recording the evidence of prose cution witnesses, the appellant was examined U/S 313 Cr.P.C . His statements wer e recorded and he was asked whether he would adduce evidence in his defence. He declined to adduce examination of any witness and accordingly, the learned trial court on consideration of the materials and evidence on record and upon hearing the learned counsel for the parties passed the impugned judgment awarding the a I have heard Mr. D.Choudhury, learned counsel for the convict/ap foresaid conviction and sentence against the appellant. 3. pellant and Mr. D.Das, learned Addl.P.P Assam for the State-respondent. 4. Mr. Choudhury, learned counsel submits that there is no eye wit ness to the alleged incident. Except P.W-3 and the un-official witnesses, all a re family members. None of them happened to see the incident with their own ey es. They claimed that one Amar Ali saw the incident but he was not produced and examined as witness by the prosecution. All the un-official witnesses who are mostly related and interested gave only hearsay evidence. Their hearsay evidenc e is not supported by any strong evidence and as such, the learned trial court, according to him, committed grave error in law in convicting and sentencing the appellant which is liable to be set aside and quashed. He further submits that t here is no strong circumstantial evidence against the appellant and the learned trial court convicted the appellant only on the evidence of one of the relate d prosecution witnesses who claimed to have seen the accused going away from the place of occurrence. The learned trial court drew a presumption of guilt on the accused- appellant. Such drawal of presumption, as argued by the learned co unsel, is uncalled for and unsustainable in law. 5. Mr. Das, learned Addl.P.P strenuously argues that non examinatio n of Amar Ali as witness cannot destroy the credibility of the other witnesses. Besides, the victim who was lying in serious condition, told the witnesses that the convict/appellant Kasim Ali assaulted him and the witnesses gave evidence in a corroborated manner before the court. Simply because most of the witnesses ar e related, their evidence cannot be stripped of its evidentiary value. The evi dence of the unofficial witnesses are supported by circumstantial evidence. As a strong circumstantial evidence he refers to the evidence of Pws.1 and 2 who sta ted that the appellant was seen present at the place of occurrence and he was le aving the place of occurrence after their arrival without saying any word to the m which is quite an unnatural and unusual conduct on the part of a co-villager . This points to the guilt of the appellant. He, therefore, submits that the p rosecution has proved the charge against the appellant beyond reasonable doubt a nd no interference with the impugned conviction and sentence is called for.

6. The submissions of the learned counsel for the parties require examination through appreciation of evidence on record. Let me , therefore, go t hrough the evidence on record for appreciation. The informant, in this case , is none other than the father of the victim. He is Md. Hasan Ali. He was examined as P.W-1. As per his evidence he was asleep at 9.30 P.M of 6.8.07. He woke up fr om his sleep when he heard hue and cry of the people. He came out to the courty ard and saw Kasim Ali lying after being assaulted. But again he stated that the occurrence took place elsewhere and the injured Kasim was brought home by some people. His injured son told him that it was Safiur who assaulted him. On being cross-examined, he stated that he can not see properly without spectacles. 7. P.W. 2, Md. Anowar Hussain is the brother of the deceased. He st ated that the incident took place in the night and it was a dark night. He was also asleep. He heard about (cid:28) marpit and sound of beating (cid:28) . He left the bed and came to the road with a torch light in its hand. In the flash of torch light he saw Kasim lying on the road. He saw injury on the head of Kasim and blood oozin g out. He also saw the accused Safiur Rahman fleeing away. The occurrence took p lace near by his residence. He took the injured Kasim Ali in his lap. His wife a lso came with a lamp. Altaf, P.W-6, Jamsher Ali, and P.W-8, Safar Ali also cam e to the place of occurrence and took the injured to his residence and laid hi m at the varandah. Later on the injured was removed to Mukalmua PHC and subseque ntly shifted to GMCH where he succumbed to his injuries. 8. P.W-5 Safar Ali, stated that victim was his nephew. This witness was sleeping at the time of occurrence. He heard about incident from Amar Ali w ho told him that Safiur Rahman killed his nephew Kasim Ali. He found the victim in a conscious state and he was in a position to talk at that time. 9. P.W-6 is Md. Altaf Ali. He stated that Kasim was the son of hi s elder brother. On the night of occurrence he was sleeping and got up from sle ep after hearing sound from Amar Ali that Kasim was assaulted by Safiur Rahman. He came to the place of occurrence and saw Kasim lying near the place of occur rence in an injured condition in an unconscious state and he could talk slow ly. Injured Kasim told him that Safiur Rahman (cid:28)assaulted him (cid:28). This witness, alo ng with others, carried the victim to his residence and thereafter took him to M ukalmua PHC from where he was shifted to GMCH, where he succumbed to his injurie s. In cross-examination he denied the suggestion that he did not tell the poli ce that victim was in unconscious state and could speak slowly at that time. 10. P.W-8, Samser Ali, is the brother of the deceased .He stated tha t at the time of incident he was inside his house and he came out when he heard hue and cry of Anowar Ali (P.W-2) and rushed to the place of occurrence where h e saw Anowar Ali holding the victim Kasim Ali on his lap . He saw the injury w ith bleeding on the head of Kasim Ali. On his query victim Kasim replied slowly that he was beaten by Safiur, son of Jamir, with a bamboo stick. The victim wa s in a serious condition but he was in a position to talk and he slowly narrat ed how he was assaulted by Safiur. In cross examination he denied the suggestio n that he did not tell police whatever the deceased told him. 11. From the evidence of PWs. 1,2,5,6 and 8 it is found that the de ceased was related to them. None of them is an eye witness to the incident of as sault on the victim. From the evidence of the aforesaid witnesses, it is confir med that the victim was brought home with serous injury on his head and before removing to Mukalmua PHC he told the aforesaid related witnesses Pws.1,2,5,6 and 8 that he was assaulted by accused Safiur. Now it is to find out whether t he evidence of these related witnesses in respect of evidence of assault by Safi ur as told by the victim before his death, has been corroborated by any of the t wo independent witnesses - PW- 3, Md. Mahkub Ali and P.W-4 , Sirajul Hoque. P.W- 3 stated that he was sleeping in his house at the time of occurrence. On hearing the shouting of Amar Ali he rushed to the place of occurrence and found the vic tim in an unconscious condition. He could see blood oozing out from the head o f the victim. He stated that Siraj was with him at that time. In cross- examina tion he clearly stated that the deceased Kasim was lying unconscious till he w as taken to hospital for treatment. 12. P.W-4, Sirajul Hoque, stated that on the day of occurrence he he ard the outcry from outside his house. The incident occurred near the residenc e of Amar. He further stated that Amar shouted that Kasim was assaulted. On visi ting the place of occurrence, this witness saw Amar and others taking away Kasim from the place of occurrence for treatment. He saw injury on the person of the victim . Amar told him that Kasim was assaulted by the accused Safiur Rahman . A t that time as stated by this witness, injured Kasim was in a position to speak and told him that he was assaulted by accused Safiur Rahman and pointed his fin ger towards the accused person. 13. P.W-9, Dr. Pallav Kalita, of Mukalmua PHC stated that the patie nt was brought in a semi conscious state and he was immediately sent to GMCH,Guw ahati after providing preliminary treatment. Nothing has been stated by this Med ical Officer as to whether the injured was in a position to talk. 14. One Dr. Dipak Kr. Das of GMCH was examined as P.W-7. He conduct ed the post-mortem examination on the dead body of the deceased. As per his evid ence he found the followings :- (cid:28)Injury: One lacerated injury present on right frontal parietal area,size 5x1 cm x bone depth. One contusion present on the left buttock and lower buttock, size 25 x 20 cm. Blood smear adhere to body resist washing with water. Scalp: After dissection he has found on scalp contusion present frontal and both pariet al area. Both temporal muscles are contused. Skull: Depressed commuted fracture present on right parietal and frontal area, size 6 x 6 cm base of skull are found fractured and anterior compartment. Vertebrae- healthy membrance congested extra dural haemorrhage present on left temporal region and diffused subdural haemorrhage present on right cereb ral hemisphere. Brain lacerated and right frontal area. Spinal cord not examined. Dissection of thorax, walls, ribs and cartridges are healthy,pl eurae congested, larynx and trachere congested, right lung and left lung both ar e congested, pericardium congested, heart healthy and contains liquid blood amou nt- 100 ml ( approx).Vessels healthy and contains liquid blood Injury fracture and dislocation as described in the injury No. 2. Stomach and its contents hea lthy and empty. Small intestine and its contents congested and contains fluid fo od materials. No suspicious smell .Large intestine and its contents gases and fo cal matters. Liver, spleen congested. Kidneys both congested. Bladder healthy a nd empty. Organs of generation, extreme and internal are all healthy. In the opinion of Doctor the cause of death’s due to coma result ing from injuries sustained on head. Injuries are ante-mortem caused by blunt f orce impact. Time of death in between 6 to 12 hours. (cid:29)

15. P.W-10, Md. Jafar Ali Mandal, is the I.O of the case. He deposed that he visited the place of occurrence and came to know that the injured person was al ready sent to Mukalmua PHC and learnt that on 7.8.07 at midnight the victim die d. Inquest was prepared on 8.8.2007 at Guwahati. He prepared a sketch map and co llected the post-mortem report from the GMCH,Guwahati. He arrested the accused S afiur Rahman and forwarded him to court. In cross-examination he stated that h e did not see the dead body of the victim. He tried to seize the weapon used by the accused but he did not say whether it was found or recovered during investi gation. He further stated that P.W-2 Md. Hasan Ali told him that he saw blood c oming out from the head injury sustained by the victim. P.W-2 Anowar Hussain did not tell him that accused Safiur Rahman assaulted Kasim Ali and ran away. The I.O. also stated in his cross- examination that P.W-4, Sirajul did not tell him that the injured showed him pointing his finger at Safiur Rahman.The I.O. also categorically stated that P.W-5 (Safar Ali) did not tell him that Amar informed him that accused Safiur Rahman assaulted Kasim Ali. 16. The facts that victim Kasim Ali was assaulted by somebody and r eceived grievous injury on his head and that he was taken to Mukalmua PHC and th en shifted to GMCH,Guwahati and he died the said hospital in the night of 7.8.07 have been proved. The burden of the prosecution is not fully discharged so long it can adduce sufficient evidence, ocular or circumstantial, as to who actuall y assaulted the victim resulting into his death. As per the evidence on record the incident took place in the midnight near the house of one Amar Ali and as per the evidence of P.Ws. 3 ,4,5 and 6 they heard the shouting of said Amar Ali saying that victim Kasim was assaulted by Safiur Rahman. P.Ws 1 and 2 in their evidence did not say that they heard the similar shouting from Amar Ali. The said Amar Ali was not cited as a witness in the chargesheet submitted by P.W.10 . During trial no prayer was made by the prosecution for summoning the said Amar Ali as witness although as many as 4 P.Ws namely, PWs. 3,4,5 and 6 mentione d in their deposition about the shouting of Amar Ali that accused Safiur assau lted the victim . It was incumbent upon the prosecution to cite the aforesaid A mar Ali as witness or to summon him through court to prove the fact that he saw the incident of assault by Safiur Rahman on Kasim Ali with his own eyes and he shouted accordingly to attract the people. The said Amar Ali was the only proba ble eye witness. P.Ws 3,4,5 and 6 are not eye witnesses. They made statements b efore the court only on the basis of what they heard from the shouting of Amar Ali. The evidence of said P.Ws 3,4,5 and 6 are nothing but hearsay evidence. The ir evidence could have been used for the purpose of corroboration of evidence of said Amar Ali had he been examined as a witness and stated that he saw the alleged incident with his own eyes. Even if the said Amar Ali was examined and g ave evidence against the accused that he assaulted the victim causing serious in jury, it would have been subjected to cross examination by the defence counsel a nd his evidence would have been accepted only if they could withstand the cross- examination and remain un-impeached. In this case, the opportunity of cross-exam ination of Amar Ali has been denied as because the prosecution withheld this im portant so- called eye witness without showing any reasonable and acceptable exp lanation. The identity of the perpetrator could not be established by the prosec ution. The prosecution tried to prove the charge against the convict/appellant o nly on the basis of hearsay evidence not corroborated by any other evidence. Thi s is not at all permissible in criminal trial, more particularly, in the case of murder. The approach of the prosecution as well as the learned trial court cann ot be approved. 17. The only stand available against the accused in the present case is the presence of the accused at the place of occurrence at the relevant point of time who was allegedly seen by P.Ws 1 and 2. P.W-1 is the aged father of the victim who stated in his own evidence that his eye sight was not good and it was a dark night. It is, therefore, doubtful, even he saw somebody near the place of occurrence, he could really recognise the person.P.W-2 claimed that he saw the accused Safiur in the flash of torch light fleeing away from the place o f occurrence . But interestingly no other witness who gathered at the place of o ccurrence immediately after the incident, did say that P.W- 2 was carrying a t orch light. None of the witnesses who gathered, even P.Ws 3,4,5 and 6 (all rela ted ) did not make even a whisper that P.W-2 carried a torch light and P.W-2 eve r told them that he saw the accused in the flash of torch light and the accused was fleeing away. Thus, the prosecution failed to prove the case by circumsta ntial evidence also. 18. As per the evidence of P.W-4 injured Kasim Ali was in a positio n to speak while he was lying in an injured condition and he pointed out his fin ger towards the accused person. It must be noticed that the accused Safiur Rahma n was not present near the victim at the time when victim was lying in an injur ed condition and by the time, if evidence of time P.W-2 is to be believed, th e accused had already fled away from the place of occurrence. If it is so, how could it be correct that the victim pointed his finger towards the accused pers on. This piece of evidence of P.W-4 is not corroborated by any independent witne ss and therefore, it cannot be accepted as true. Again if it is accepted that in jured Kasim Ali was in a position to speak and he named the accused as the perpe trator, arrangement should have been made to call the village Headman immediatel y to record the dying declaration in presence of the elderly villagers. Such arr angement could have been made even at the Mukalmua PHC to record the dying decla ration in presence of the Medical Officer. Such steps were not taken. There is n o evidence corroborating the evidence of P.W-4 that the victim, before his death , disclosed the name of the accused as the person who inflicted injury on the he ad of the victim. The unsupported and uncorroborated evidence of P.W-4 in this r egard cannot be acted upon to impose conviction on the accused. 19. From the above discussion, it is more clear that the prosecution could n ot adduce any direct evidence of eye witness who had seen the act of assault by the accused Safiur Rahman inasmuch as the person who allegedly saw him inflict ing assault on the deceased has not been produced before the court. This rests t he case of murder on circumstantial evidence. As discussed above, no strong circ umstance pointing the guilt of the appellant could be found. This again rests th e matter on motive of assault on the deceased. The father of the victim, P.W-1 as informant, stated in the FIR amongst others that the accused since bef ore the incident have been telling that he would kill his son and go to jail but in his evidence he did not say anything about any enmity or old grudge or motiv e behind the murder. He has not mentioned in his evidence that the accused ever uttered so pronouncing his intention to kill his son and go to jail. Even the o ther related witnesses namely, P.Ws 2,5,6 and 8 , in their deposition, did not d isclose about the existence of any enmity, old grudge or motive to kill the vict im Kasim Ali by the accused Safiur. The allegation of P.W-1, that the accused an nounced earlier to kill his son could not be proved. It was rather abandoned by him as he uttered not a single word about the same in his evidence. The other r elated witnesses also did not say anything about it in their evidence . P.W-1 a nd other related witnesses in their evidence, did not speak out regarding any mo tive or possible reason for killing the victim by the accused. Motive gains sign ificance in a criminal case when the direct or ocular evidence and strong circum stantial evidence is not available. It is not comprehensible why the accused sho uld murder hitting the victim on his head without any conceivable motive or reas on. I may refer to a decision of the Apex Court in Shri Lakhanpal Vs. State of M.P, reported in AIR 1979 SC 1620 wherein it has been held that absence of m otive, on facts, disproves the commission of offence. It may be relevant to me ntion another case decided by the Apex Court in Tanviben Pankajkumar Divetia Vs . State of Gujrat, reported in (1997) 7 SCC 156 , where in it has been held that if the evidence of murder are clinching , motive assumes greater importance t han in the case where direct evidence are available. The circumstantial evidence in the present case could not establish the link of the accused with the alle ged murder. The prosecution is required to establish the link of the accused wit h the alleged murder through chain of circumstances in a case where it has fai led to produce the direct evidence. In the present case, the prosecution admitte dly failed to produce the eye witness Amar Ali to give ocular evidence. The pr osecution has landed nowhere as it has failed to adduce the direct evidence and circumstantial evidence. So also the existence of motive has remained unproved. Therefore, it can be said that the prosecution miserably failed to prove the ch arge against the appellant. He is entitled to acquittal. The impugned judgment a nd conviction and sentence is unsustainable in law and the same are hereby quash ed and set aside. Appeal stands allowed. The convict appellant stands acquitted on benefit of doubt.The a 20. ppellant be set at liberty forthwith if his further detention is not required i n connection with any other case. 21. Return the LCR forthwith.