High Court · 2012

5. An FIR narrating above allegations on being lodged with the Officer-in-Ch arge, Silchar Police Station on the next day of the incident i.e., on 26.08.2000 , police registered a case under Section 147/149/302 IPC and ordered investigati on. During the course of investigation, the Investigating Officer visited the pl ace where the dead body was found lying.

6. He thereafter conducted inquest on the dead body and sent the same to hosp ital for post mortem examination to ascertain the cause of death. In the course of time, he examined the witnesses and also have the statement of the daughter o f the victim recorded by Magistrate under section 164 Cr. P.C.

7. On completion of the investigation, I/O submitted charge sheet under Sectio n 147/149/302 IPC against, Alutun Bibi , Masaddar Ali, Samsun Nessa and Babul Al i all are now acquitted of the charge brought against them, as well as accused/ appellant Sailu Mia and forwarded them to the Court to stand their trial.

8. The learned Magistrate before whom the charge sheet was so laid committe d the case to the court of Sessions since the offence under Section 302 IPC is e xclusively triable by the court of Sessions. On the receipt of the case on commi tment and after hearing the parties and on going through materials on record, le arned Sessions Judge, Cachar, Silchar framed charges under section 147/149/302 I PC against the accused persons.

9. Charges, so framed when read over and explained to accused persons, they ple aded not guilty and claimed to be tried. During the course of trial, the prosec utor examined as many as eight witnesses including the Investigating officer who conducted the investigation of the case aforesaid. Thereafter, statements of accused persons were recorded.

10. In their statements, they denied having committed the offences they were c harged with but also contended that on the faithful night, the deceased had a di sastrous fall from his house which is situated on hill top and in that process, he sustained grievous wounds on his person for which he died sometime, thereafte r.

11. However, on being required, accused persons declined to adduce any evide nce of their own. On conclusion of trial, and on hearing the arguments, adva nced by learned counsel for the parties, learned Sessions Court held accused/ ap pellant Sri Sailu Mia guilty of offence under section 304 Part-II IPC, convicted there-under and sentenced him to punishment as aforesaid.

12. It is the judgment which has been assailed in the present appeal. Opening up the argument on behalf of the appellant, learned counsel has submitted that the judgment of the trial suffers from several infirmities of extremely serious nat ure. According to him, one Surma Begum, daughter of the deceased was the star c ampaigner from the side of prosecution and was examined as PW4. But she refused to support the prosecution case for which was declared 13. hostile meaning thereby that one of the most fundamental pillars on which the pr osecution tries to erect its edifice got collapsed even before construction of s uch an edifice. This itself is a ground on which learned trial court ought to ha ve recorded an acquittal order in favour of accused / appellant as well.

14. According to the learned counsel for the appellant, there are some other i nfirmities in the judgment, rendered by the trial court. In that regard, it has been pointed out that evidence, rendered by PW.1 PW.2 and PW.6 become inadmissib le in law in view of evidence rendered by PW.4, the daughter of the deceased.

15. She further contends that the evidence rendered by PW.3 is also unreliab le since his claim that he came to the place of occurrence on hearing hue and cr y there -from to witness the incident which occurred at 2/2.30 p.m. on the 26/8/ 2000 is again not in the tune of claim made by prosecution in this case.

16. It is also the contention of the learned counsel for the appellant that learned trial court places enormous reliance on the statement rendered by PW.4 b efore the Magistrate during the course of investigation in recording a verdict o f guilt against the accused/ appellant. Such reliance is not permissible is law ,more so, when author of such statement refuses to support her statement made be fore this Magistrate.

17. All those infirmities in the prosecution case were ignored/ overlooked b y the learned trial court and convicted the accused of the offence aforesaid and sentenced to suffer R.I. for three years and ordered him to pay Rs.2,000/- i.d. R. I. for another three months. He therefore, urges this court to acquit the pe rson on setting aside the judgement of trial court.

18. On the other hand, the learned additional Public Prosecutor appearing for the State has contended that learned trial court has rendered its judgment on th e materials on record having regard to the laws which governed the proceeding un der consideration. She therefore, submits this court to dismiss the appeal on af firming the judgment of the trial court.

19. I have given my anxious consideration to the argument in advanced by the le arned counsel for the parties, having regard to the materials on record. However , before we could proceed further, I have found it necessary to have a brief rev iew of evidence on record and the evidence of Doctor is first taken up for consi deration.

20. Dr. Homeswar Sarma, who conducted post mortem examination on the dead body at Silchar Medical College on 27.08.2000 at 8 p.m. was examined as PW.8. Acc ording to him, on 27. 08.2000, he was working as a Demonstrator in Forensic Medi cine Department in Silchar Medical College and Hospital. On that day, he conduc ted post mortem examination on the body of one Lutfur Rehman and founds as follo ws: (cid:28)1) Defused bruise (blueish in colour) over the right side of the chick, right s ide of the forehead, around the right ear and angle of jaw, 2) Defused bruise over back of right sheulder in upper part, 3) Swelling of the right angle of Jaw part, 4) Seelling of the right side of the forehead 8 c.m. x c.m. 5) Abrasions over left side forehead measuring 3 c.m. x 1 c.m. & another 2 c.m. x 2 c.m. 6) On disection found heanatoma of the right side frontal scalp and parietal sca lp measuring 10 c.m. x 6 c.m. and 4 c.m. x 4 c.m. respectively, 7) Contusion of right side of the scalp as a whole, 8) Subdural heamorrhage present in the right side as a whole and collection of b lood in the occipital fossa. (cid:29)

21. According to Dr. Homeswar Sarma (PW8), the death of Lutfur Rehman resulted from some injuries sustained by him, which were ante mortem in nature and caused by blunt force impact. The post mortem report was proved as Ext.-4

22. PW.1- Azijur Rehman was informant of the case under consideration. Accor ding to him, the deceased resided at a distance of 1-1/2 Km. from his house but in the close vicinity of the house of his in-law. One day, in the morning, one, Anar Ali came to him and reported him that his brother Lutfur Rehman met his de ath in the house of his in-law.

23. On being so informed, he rushed to such place in the company of Faijul A li, Rehman Ali, Monilal Singh and others and saw the body of his brother on a co t being covered with a bed cover. On unveiling the bed cover, he saw several wou nds on the body of his brother some of which were on his body part as vital as h ead. Thereafter, one, Surma Begum and Abdur Rehman, they being daughter and s 24. on of the deceased respectively, reported him that deceased was done to death by the accused persons inside their house. On being so informed, he lodged the FI R. The FIR was proved as Ext.-1

25. On the receipt of FIR, police rushed to the place of occurrence and held inquest on the dead body of the deceased in his presence and prepared an inques t report which was proved as Ext.2. In his cross-examination, it had been con tended that house of the deceased was situated on the top of a Tilla, which is f lanked by the houses of some other person including the houses of the accused pe rsons herein.

26. PW 2, Md. Faijul Ali Laskar is heard saying that incident in question occur red in the month of August, 2000. On the fateful night at about 9.00 PM. he hea rd deceased Lutfur Rehman quarrelling with accused persons in the house of his i n-law. On the next day, in the morning, at about 6.30 AM. he came to the house of the accused persons and found deceased lying dead in the house of accused per sons.

27. At that time, police was also there. He saw daughter of the deceased rep orting the incident to the police. He heard her saying that there was quarrel b etween the deceased and his in-law over some domestic matters previous day. In h is cross examination, he has stated that he resides at a distance of 1 km. from P.O. He denied the suggestion that he did not tell the I.O. that he heard daugh ter of deceased rendering a statement to the police that there was quarrel betwe en the deceased and accused persons previous day.

28. PW 3, Sri Monilal Singh is found saying that one day at about 12 noon, h e saw deceased going towards the Mosque. At about 2/2.30 pm. he heard hue and cr y emanating from the house of accused Masaddar Ali for which he rushed thereto b ut only to be driven out there from by the accused Masaddar. Following day in t he morning, he came to know that Lutfur met his death.

29. He also came to know that his dead body was there in the house of the ac cused person. He went to the house of accused person and found the brother of th e deceased at such place. He also noticed wounds on the head chest and other bod y part of the deceased. In his cross examination, he admitted that at the time r elevant there was flood all around. He has also admitted that he resides at a di stance of 1 k.m. from the place of occurrence

30. PW4- Surma Begum while deposing before the court narrated that on the fa teful night, deceased went out of his house which is situated on the hilltop and somehow fell down there-from for which he sustained wounds on his person. She, therefore, took her father to the house of accused persons on being assisted by them. As there was flood at that time, he could not be shifted to hospital for m edical treatment. PW. 4 was declared hostile.

31. PW5, Moinul Haque, is a close-door neighbour of the deceased. On the dat e of occurrence, he returned home at 8.30 p.m. As he was returning home he met A latun Messa and her daughter who told him that deceased fell from the hilltop an d sustained wounds on his body. He ,therefore, advised them to remove him to hos pital. He was declared hostile.

32. PW6- Islam Uddin Mazumdar is also found saying that on the fateful day, at about 1.30pm, the mother-in- law of the deceased called him to their house. He immediately came to such place and saw a huge gathering there. He also saw the d eceased lying on a cot in an unconscious state in the house of accused persons. The daughter of the deceased was there at the time.

33. When he enquired her as to what has gone wrong, she reported him that th ere was a quarrel between the deceased and accused person and his other family m embers over realisation of amount to the tune of Rs. 40,000/- from them for whic h accused No.1 Sailu Mia, Kalam and Massadar assaulted her father with brick and pieces of wood. One Alauddin advised him to bring one boat to take the injured to hospital.

34. He made a search for a boat but he could not found the same because of t he flood. Later on being informed, police came there, conducted an inquest on th e body of the deceased and in that connection police prepared an inquest which w as proved as Ext.-2. In his cross- examination, he denied the suggestion that he did not tell the police that accused person owed Rs.40,000/- to the deceased.

35. PW 7, Sri Biswadev Nath, is the Investigating Officer in case under cons ideration. According to him, on 26.08.2000, he was posted as attached officer a t Silchar Police Station. On that day, the investigating officer entrusted him to investigate the case initiated on the basis of FIR lodged by one Azijur Rehma n. On being so entrusted, he visited the place of occurrence and found dead bod y there in the premises of accused persons.

36. He thereafter, conducted an inquest on the dead body had the statement o f some of the witnesses recorded by Magistrate, sent the dead body to hospital f or post mortem examination, examined the witnesses and did other needful and on the conclusion of investigation, he submitted charge-sheet against as many as 5 accused persons. In his cross examination he has stated that PW.6 did not tell h im that accused persons owed the deceased Rs.40,000/-

37. We have already found that deceased died an unnatural death on or around 2 6.08.2000 and the death of occasion by several ante mortem wounds found inflicte d on the body of the deceased. Now ,the question is was such death homicidal in nature and if so, whether accused / appellant was the person responsible for su ch death.

38. On a very careful perusal of the testimony of PWs, I have found that tho ugh prosecution heavily relies on the testimony of PW.4, she refused to support the prosecution allegation that accused/ appellant was one of the persons respon sible for death of her father. In the face of above revelations, the prosecution heavily relies on testimony of PW1, PW.2, PW.3 and PW.6.

39. PW.2, is found saying that when he came to the P.O. knowing about the de ath of Lutfur Rehman, he found a huge gathering there and also heard the daughte r of deceased (pW.4) telling the police that there was a quarrel between the dec eased and accused personsover some monetary disputes.Unfortunately,PW.4 refused to support such a claim made by PW.2, since PW.4 categorically stated that the w ounds which her father sustained was caused for his fall from the hilltop .

40. Coming to the evidence of PW.3, I have found that one day at about 2/2.3 0 p.m. he heard hue and cry coming from the house of accused persons. Hearing th e same he went to the house of accused persons Massadar did not allow him to go inside the compound of accused persons for which he had to return without notici ng as to what was going on inside the compound of accused persons. 41. The above evidence of PW.3 cannot be accepted as reliable one for reasons m ore than one. First, it is nobody’s case that the deceased met his death on 25.0 8.2000. Rather from the material available on record it can very well be presume d that according to prosecution death occurred on the night intervening 24th and 26th August 2000 following a quarrel between the parties same day . On the other hand, the PW.3 has stated in his evidence that he resides a 42. t a distance of 1 k.m. from the P.O. which residential houses of both accused an d the deceased are situated. Why he was there or how he heard the quarrel from a distance as huge as one 1 k.m. are not at all clear from the evidence on record . Being so, I am of the opinion that evidence of PW.3 is equally unsafe for rel iance.

43. Coming to the evidence of PW.6, I have found that according to him PW. 4 told him that the accused had a quarrel with the deceased over some monetary ma tters for which accused Sailu, Kalamuddin and Massadar had assaulted the decease d with brick and pieces of wood. We have already found that PW.4 did not utter a word before the court about her father being assaulted by those/three/accusedpe rsons.

44. Quite contrary to it, her specific claim before the court was that on th e fateful evening her father had a disastrous fall from the hilltop where their house is situated only to sustain serious wounds on his person which unfortunate ly occasioned his untimely death.

45. In the face above evidence and also in the face of the fact that PW.4 di d not utter any word in the line of testimony rendered by PW2 and PW.6. I am not inclined to accept the claim of PW.6 that accused persons assaulted the decease d on the evening in question with brick and wood resulting in his untimely death .

46. PW.1 also deposes that on arriving at the P.O. he found his brother dead with wounds on the various part of his body. He is also found saying that the s on and daughter of deceased (PW.4) told him that their father was assaulted by a ccused persons which ultimately occasioned his death. Evidence of PW1 too cannot be accepted as reliable one in view of reasons rendered herein before.

47. The above revelations have very firmly brought to the fore that the pros ecution could not prove any offence against the accused persons -much less his h aving been found committing the offence under Section 304 Part-II IPC. Being so, in my considered opinion, the accused/ appellant deserves an order of acquittal on setting aside judgment, rendered by trial court

48. On my further perusal of the evidence on record, I have found that at le ast accused/ appellant as well as one Massadar Ali, since acquitted ,are placed almost identically in the face of evidence on record. The learned trial court ha d, however, acquitted the Massadar Ali along with three other persons of the cha rge brought against them and in my opinion, it was rightly done. Though, the yardstick on the application of which said Massadar Ali stoo 49. d acquitted of the offences, he was charged with, the accused/ appellant was den ied his case being measured with same yardstick although he was situated almost identically as that of said Massadar Ali in view of evidence on record. This app roach of learned trial court cannot be approved of. This is another reason why t he accused/ appellant needs to be acquitted of the offence, he was charged with.

50. Here, we may note that the learned trial court has placed enormous relian ce on the statement which the PW.4 has rendered before the Magistrate as per Sec tion 164 Cr.P.C. blissfully forgetting that the statement rendered before the Ma gistrate under the aforesaid provision of law is not substantive evidence. The statement under 164 Cr.P.C. is only corroborative in nature.

51. Substantive evidence is the testimony rendered before the court. In that view of the matter, decision of the learned trial court coming to the conclusio n that accused /appellant committed the offence under Section 304 Part-II IPC is unsustainable in law since in coming to above conclusion the leaned trial court places huge reliance on the statement which Magistrate recorded under Section 1 64 Cr.P.C.

52. In view of what I have discussed here- in -before and what have emerged th ere from, I am the opinion that the prosecution could not clearly make out that the death of lutfur Rehman was homicidal in nature which in turn lead me to the conclusion that prosecution also could not prove that accused Md. Sailu Mia com mitted an offence under Section 304 part-II IPC.

53. Consequently, the judgment ,rendered by trial court is found unsustainable i n law and as such, the judgment of the trial court convicting accused under Sec tion 304 Part-II IPC and punishing him as aforesaid needs to be interfered with.

54. In the result, the accused /appellant is acquitted of offence under Section 304 Part II IPC on setting aside judgment of the trial court under challenge.

55. Accused/ appellant be set at liberty forthwith, if he is not required in an y other case.

56. Send down the LCR forthwith.