High Court
Case Details
Crl.A. 166/2012 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL AND THE HON’BLE MR.JUSTICE N CHAUDHURY All the aforesaid 17 appellants have been convicted uniformly under Sections 447 /326/302/436 of the Indian Penal Code ,1860 and different sentences have been a warded vide judgment and orders dated 19.07.2012 and 20.7.2012 passed by the lea rned Sessions Judge, Morigaon in Sessions Case No.73 of 2005. Except conviction u/s 447 the appellants have been convicted u/s 326/302/436 of the IPC with the a id of section 34 IPC. It is also made clear that all the sentences have been dir ected to run concurrently. Being aggrieved with the conviction and sentences the appellants have preferred this common appeal.
Legal Reasoning
We Heard Mr. HRA Choudhury, learned senior counsel for the appellants an 2. d Mr. BJ Dutta, learned Addl. Public Prosecutor for the State. We have also gone through the impugned judgment and have scanned the evidences meticulously. 3. The incident took place on 15.7.2004 at about 5.30 pm in an interior pla ce under Mairabari police station. Investigation was taken up by PW-12 on the ba sis of telephonic information by one Hafizuddin. After recording GD entry No. 30 8 he visited the place of occurrence on the same night. However, the written FIR was lodged by PW-1 on the next day alleging that the appellants accompanied by others came to the courtyard of Rahul Amin armed with dao, lathi, spear, axe and swords etc. and killed the said person. It was also alleged that the miscreants set afire a house and when some of the witnesses came forward to save the life of Rahul Amin they were also assaulted and injured. On the basis of this FIR and after completing the investigation charge sheet was laid against 17 persons and the same set of accused persons have been convicted vide impugned judgment. 4. As many as four accused persons took an alibi that they were not present at the scene and to establish their defense four witnesses were also examined a s defense witnesses. The remaining accused persons took a plea of total denial c laiming them to be innocent persons. 5. On the other hand, the prosecution also examined only 12 non-official wi tnesses and the medical officer and the I.O. Except PW-10 all the remaining witn esses are closely related to the deceased. Precisely, PWs-1, 2, 3, 4, 5, 6, 7 an d 9 are the grandsons, maternal uncles, wife, brother-in-laws and daughter-in-la ws of the deceased. Only PW-10 appears to be the only independent witness. The p erson on whose basis GD Entry No.308 was recorded and investigation was taken up was not examined by the prosecution, though cited in the charge sheet. 6. The learned senior counsel for the appellants argued that an exaggerated story has been cooked-up in view of deep rooted enmity between the parties. The fact of enmity has been admitted in the FIR itself stating that in an earlier c ase the accused persons were acquitted by High Court and at the relevant time th e prosecution witnesses were discussing about filing of an appeal. It is said th at enmity is a double edged weapon. Due to enmity there is every possibility of committing offence and at the same time possibility of improving and exaggeratin g the real story also cannot be ruled out. Taking us to entire evidence on recor d the learned counsel for the appellants made all efforts to show that all the a ppellants were not involved in the incident. The learned counsel also contended that defense evidence have been superficially discarded by the trial court. 7. Before venturing to scrutinize the prosecution evidence we are reminded about the observations of the Hon’ble Supreme Court made in the case of Sherey - vs- State of UP: ( AIR 1991 SC 2246) wherein their Lordships of the Apex Court h ave observed that in a case where large number of accused persons are implicated courts should find some reasonable circumstances which can lend assurance again st them and, in such case, it is safe only to convict those accused persons agai nst whom the prosecution evidence is consistent and, more particularly, against whom overt acts are attributed. 8. In the case of State of Rajashtan -vs- Kalki :(AIR 1982 SC 1390) the Ape x Court has made a distinction between the ’interested’ and ’related’ witnesses. Their Lordships have held that just because witnesses are interested in the pro secution their testimony cannot be discarded. However, testimony of such related and interested witnesses should be scanned with care and caution. It is also be en observed that ordinarily a close relation would be the last person to screen the real culprit and falsely implicate innocent persons. 9. Coming to the case at hand we have noticed that PW-1 has given a little different story about the genesis of the incident than what has been stated by P W-5. According to PW-1 at the relevant time he alongwith the deceased and PW-4 Z akir Hussain were constructing a bamboo platform. Then he sent Zakir Hussain to call Abdul Ziad (PW-7) and Faizul Rahman (PW-9) in his courtyard. Accordingly, b oth PWs-7 and 9 came within a couple of minutes. Suddenly they heard hullah near by and PW-7 proceeded towards that place. Thereafter, PW-1 and other persons pre sent there heard the cry of Ziad (PW-7) and going near the place of occurrence h e found that Ziad was assaulted by accused Salam, Atabur, Mohamad and Kalam with swords. Simultaneously all the appellants came to his courtyard and assaulted h is grandfather (Rahul Amin) with sharp weapons. PW-1 has specifically attributed overt acts of assault upon the deceased against the accused Abul Hasen, Dilowar and Anis Ahmed, PW-1 has further deposed that PWs- 3 and 4 were also assaulted and the accused persons also set afire the storeroom of paddy hay. PW-1 has impl icated Gafur and Abdul Rahman in setting afire the heap of straw. 10. PW-5 Abadur Rahman has deposed that at the relevant time he was sent by the deceased to his agricultural land. Suddenly the appellants came running towa rds him duly armed with various kinds of weapons and the accused Anis, Mohammad and Atabur assaulted him. Thereafter he became unconscious and came to senses on ly in the hospital where he heard that Rahul was killed by accused Dilowar, Abul Husen and Abu Kalam. In this way PW-5 has corroborated PW-1 regarding implicati on of the aforesaid two appellants, namely, Dilowar, Abul Husen in the offence o f murder. Though PW-5 has not made it clear as to who told him that the three a ppellants had assaulted the deceased but PW-5 was also not confronted in the cro ss-examination about source of his information. 11. In our considered opinion since other witnesses were also admitted in th e same hospital and other witnesses were attending them it can be presumed that the name of the assailants must have been told to PW-5 by their family members. In the cross-examination PW-5 has clarified that initially he was chased but fin ally he was overpowered and assaulted in the courtyard of the deceased Rahul Ami n. His testimony has cleared the confusion about genesis of the incident. At the same time the testimony of PW-5 assumes significance to hold that all the appel lants did not have the common intention to commit the murder of Rahul Amin. Had it been so the appellants would have straightway trespassed in the courtyard of Rahul Amin instead of first chasing PW-5, who was little away from the place of occurrence to oversee the crops in the field. 12. PWs-3, 4, 6, 7 and 9 have by and large narrated the same story that all the appellants came in a group and assaulted them with different weapons. PW-2 w as at home and he came to the place of occurrence after the incident was over an d the injured were being taken to the hospital in handcarts. 13. PWs-3, 4 and 7 are also injured persons. PW-3 has also implicated Abul H asen, Dilowar and Anis giving fatal blows on the chest and other parts of the de ceased. She has also named only accused Matibur for assaulting her with a sword on her head. PW-4 is also an injured witness. He has also named Abul Hasen, Dilo war and Anis in committing murder of Rahul. PW-4 has implicated only Sattar in a ssaulting him with a sword on his left hand. 14. PW-7 is also an injured witness. This witness was also engaged by the de ceased in constructing the bamboo platform. The witness has also spoken about en mity with the accused persons by deposing that at the relevant time they were al so discussing about filing of an appeal against a judgment of acquittal of the a ccused persons in a murder case. PW-7 has also deposed that initially his brothe r Abadur (PW-5) was chased by the appellants. He has spoken about assault upon PW-5 by accused Anis, Mohamad Ali and Atabur Rahman. In this way PW-7 is corrob orating PW-5 for his assault by three accused persons, named above. PW-7 has als o deposed that he was assaulted by accused Abu Hanifa, Jainal, Afazuddin, Kalam, Salam and Atabur. However, he did not see actually who assaulted Rahul Amin. 15. PW-9 was also present at the place of occurrence and taking part in the discussion for filing appeal against an order of acquittal against the accused p ersons in a different murder case. PW-9 has also deposed that initially the appe llants chased Abadur and he came running to the front gate of the deceased. PW-9 has named almost all the appellants in assaulting Abadur whereas the injured hi mself has named only three persons in assaulting him. With regard to the assault upon the deceased PW-9 has implicated Abul Hasen, Dilowar and Anis. PW-9 has al so corroborated PW-3 about her assault by accused Motiur. 16. PW-10 has deposed that at the relevant time he was standing near a shop at a distance of 7/8 nals (approx.80-150 feet). Suddenly he saw 15 to 16 people chasing Abadur Rahman with various weapons in their hands and finally assaulted Abadur in front of the house of the deceased. PW-10 has further deposed that the same group of miscreants entered the courtyard of Rahul Amin and assaulted some persons there but he did not enter the courtyard. PW-10 could identify only Ani s, Dilowar, Abul Hasen, Sattar, Mohammad Ali, Atabur, Hanifa, Jainal and Afazudd in. In fact injured persons have also implicated overt acts against the appellan ts named by this witness. PW-10 was not related to the deceased and injured pers ons. PW-10 has further deposed that he also saw fire in thatched house for stori ng paddy hay. After the incident PW-10 went to the place of occurrence and found the deceased and other persons in injured condition. In the cross-examination P W-10 has candidly admitted that he did not see who assaulted Rahul Amin, Zakir, Zaleka and Jiad. However, PW-10 is insisting that he saw initial assault upon Ab adur. PW-10 has stated in the cross-examination that he is not related to the in jured and the deceased person. In our considered opinion, PW-10 is an independen t witness in the locality and he has not given any exaggerating version. Had it been so he could have also deposed that he saw all the appellants assaulting the deceased and other witnesses. 17.
Decision
PW-11 is the doctor who had conducted the post-mortem examination on the dead body of Rahul Amin. This witness has deposed that he found cut wounds on t he chest, lung and left arm. According to PW-11 cut wounds on the chest and tear ing the pleurae and lung on the left chest. The second wound had caused profuse hemorrhage, which filled-up thorasic cavity and the blood subsequently clotted. Third wound had fractured the humerus. According to PW-11 all the injuries were caused by sharp edged weapon. It is true that in the cross-examination PW-11 has admitted that all the injuries were caused by the same weapon. In our considere d opinion the autopsy doctor cannot give such perfect opinion and his opinion ca nnot supersede ocular testimony of eye-witnesses. In other words, we hold that t he doctor meant to say that all injuries were inflicted with identical weapon. K eeping in mind the nature of the weapon used in the assault and also the fact th at the deceased was repeatedly assaulted in his chest we hold that the aforesaid appellants had definite intention about causing fatal injuries, which are suffi cient to cause death of a person in ordinary course of nature. With regard to the complicity of the appellants for the offence of murde 18. r we find that PWs- 1, 3, 4, 6 and 9 are consistent to implicate the appellants Anis Ahmed, Dilowar Hussain and Abul Hasen. We have already observed that except PW-1 the remaining injured persons have also admitted that the appellants had i nitially chased PW-5, who had gone to the paddy field to make a survey of the cr op. On being chased PW-5 came running to the gate of the deceased where he was a ssaulted. Since the deceased Rahul Amin was also present in his courtyard he was also beaten to death. We have already observed that had there been a common int ention to commit the murder of Rahul Amin the appellants would not have first ch ased Abadur Rahman. Beside this, the number of injuries also do not indicate tha t more than three persons were involved in the assault. At the same time, afores aid appellants have also not taken any alibi that they were not present at the p lace of occurrence. They have taken a general plea that they have been falsely i mplicated in the case since they were discussing about acquittal of accused pers ons in a murder case. 19. Considering all the aspects we find no difficulty to uphold that the con viction of Anis Ahmed, Dilowar Hussain and Abul Hasen for the offence of murder i.e. u/section 302 IPC (simpliciter). We also affirm the sentence of Life Impris onment to the aforesaid three appellants as well as the amount of fine of Rs.500 0/- each and in default of payment of fine the appellant shall undergo further r igorous imprisonment for 3 months. 20. Now we shall turn to see as to how many appellants can be convicted for inflicting different nature of injuries upon PWs- 3, 4, 5 and 7. PW-3 has implic ated accused Motiur Rahman (A-11) only. From the evidence of the doctor (PW-8) w e find that PW-3, Jeleka Khatun had received one single sharp cut injury on her occipital region and also tenderness on the chest. In the opinion of the doctor the injuries were simple in nature and caused by sharp cutting weapon. In the cr oss-examination the doctor has further admitted that all the injured persons wer e found to be normal and conscious. Accordingly, accused Motiur Rahman is convi cted u/s 324 IPC. We further hold that imprisonment for one year Rigorous impris onment and fine of Rs.3000/- would meet the ends of justice. Since the said accu sed is in prison since last 13 months, the accused Motiur Rahman is directed to be released from custody. 21. PW-4 has implicated only the appellant Abdus Sattar (A-10). According to the medical officer, the injured Zakir had also received only one two inch shar p cut wound on the left arm and the injury was simple in nature. Accordingly, th e appellant Abdus Sattar is also convicted under Section 324 IPC. We further hol d that imprisonment for one year Rigorous imprisonment and fine of Rs.3000/- wou ld meet the ends of justice. Since the said accused is in prison since last 13 m onths, the accused Abdus Sattar is directed to be released from custody. 22. PW-5 has implicated the appellants Anis Ahmed, Mohammad Ali and Atabur R ahman. According to the medical findings PW-5 had received both sharp cut and bl unt wounds on his head, wrist and tenderness on the chest. As per the doctor all the injuries were simple in nature. Accordingly, the appellants Anis, Mohammad Ali and Atabur Rahman are convicted u/s 324 of the IPC. We further hold that imp risonment for one year Rigorous imprisonment and fine of Rs.3000/- would meet th e ends of justice. Since the accused Mohammad Ali is in prison for last 13 month s, he is directed to be released from custody. Since the appellant Atabur Rahman is also being convicted u/s 326/34 IPC he shall be released from custody only a fter undergoing appropriate sentence awarded u/s 324/326/34 IPC, which shall run concurrently. Similarly, the appellant, Anis cannot be released now, since he h as also been convicted u/s 302 IPC. PW-7 Abdul Ziad has implicated the appellants, Abul Kalam, Abdus Salam, 23. Md. Afazuddin, Jainal Abedin, and Atabur Rahman and Md.Abu Hanif ( Appellant Nos ., 8, 9, 13,14, 16 and 17) for assaulting him with dao and sword. As per medica l version Abdul Ziad had sustained cut injuries with fracture of bone on the lef t parital bone and cut wound on the left temporal region and also cut wound on t he shoulder joint. In the opinion of the doctor the injuries were grievous in na ture and might have been caused by blunt and sharp weapon. Accordingly, the con viction of the aforesaid six appellants is hereby affirmed u/s 326 read with Sec tion 34 of the IPC. The sentence of rigorous imprisonment for 5(five) years awar ded by trial court with fine of Rs.3000/- each is hereby affirmed. For non-payme nt of fine the appellants shall undergo RI for three months. Out of these six pe rsons for causing grievous injuries upon PW-7 accused Salam and Kalam have exami ned themselves as DWs-2 and 4 respectively taking an alibi that they were not pr esent at the place of occurrence and did not take part in the assault. According to DW-2 he had gone to Bangalore to take admission in a law co 23.1 llege. The said accused had also produced railway tickets and a hotel accommodat ion receipt and other documents to establish his alibi. The testimony of DW-2 ha s been rejected solely on the ground that he did not examine any witness to prov e the fact of undertaking journey to Bangalore and staying in a hotel. In our co nsidered opinion railway tickets are public documents and can be received in evi dence as secondary evidence even without examination of railway officers. Even o therwise the railway tickets are supported by many other documents to show that the said accused was in Bangalore from 1.7.2004 to 19.7.2004. Hence, the involve ment of Abdus Salam in the incident is doubtful and he is acquitted by giving be nefit of doubt. 23.2. DW-4 Abdul Kalam has taken a plea that on the relevant day he was engage d in taking interview in a college at Nagaon. His evidence has been rejected by the learned Sessions Judge on the ground that it is not in the record as to what is the traveling time from Nagaon to the place of occurrence. The learned Sessi ons Judge has suo-moto assumed that it would hardly take half an hour from Nagao n to the place of occurrence. It is the admitted fact that the incident took pla ce between 5 pm to 5.30 pm and according to DW-4 he was in the college till 4 PM . DW-4 has further deposed that the distance between Nagaon town to his village was 45 km. Even the prosecution witnesses have admitted that at the relevant tim e there was flood in the area and the road connection was not smooth. Even the I .O. has admitted about flood in Morigaon district and they took 1 ‰ hour to reac h the place of occurrence. In view of these corroborative evidences we also ente rtain doubt about the involvement of Abdul Kalam in assaulting PW-7. Accordingly he is also acquitted from the offence on benefit of doubt. However, the remaini ng 4 appellants have not taken any alibi. 24. Since the appellant Anis Ahmed has been convicted both u/s 302 IPC for t he murder of Rahul Amin as well as u/s 324 IPC for inflicting injuries upon PW-5 it is directed that both the sentences shall run concurrently. To summarise the Judgment we hold that the appellants, Anis Ahmed, Dilow 25. ar Hussain and Abul Hasen have been convicted u/s 302 IPC and they are sentenced to undergo Imprisonment for life and also to pay fine of Rs.5000/- with default stipulation of further RI for 3 months. The appellants namely, Motiur, Abdus Sa ttar, Anis Ahmed, Mohammad Ali, Atabur Rahman are convicted u/s 324 IPC and they are sentenced to undergo RI for one year with fine of Rs.3000/- each. The appel lants, Motiur Rahman, Abdus Sattar and Mohammad Ali have completed 13 moths of i mprisonment. Hence, they are directed to be released from the custody. Their bai l bonds stands discharged. However, the appellants Abdul Hanif, Jainal, Afazuddi n and Atabur Rahman are hereby convicted u/s 326 read with section 34 of the IPC and they are sentenced to undergo RI for 5 years and also to pay fine of Rs.300 0/- each with default stipulation of further RI for 3 months. The sentences of A nis Ahmed and Atabur Rahman shall run concurrently. The appellants, Abdul Kalam, Abdus Salam are hereby acquitted from all t 25.1 he offences on benefit of doubt. Registry is directed to issue their release ord er. Similarly the appellants, Abdus Gafur, Abdul Rahman, Mohammad Gulzar Hussain , Dulal Ahmed and Md. Yasin Ali are acquitted from all the offences, since no i ncriminating materials are available against them. All the aforesaid appellant N os. 1, 2, 5, 6 and 12 are also directed to be released from custody forthwith. R egistry is directed to issue release order against the aforesaid appellants. 25.2 We do not propose to confirm the conviction of the appellants u/s 447 of the IPC separately. Similarly, conviction of the appellants u/s 436 IPC is also unsustainable in law inasmuch as the haystack was not stored in any dwelling ho use. Accordingly, the conviction of the appellants from the offences u/s 447/436 /34 of the IPC are hereby set aside. 26. Return the LCR record with a copy of this judgment. The learned Sessions Judge, Morigaon is directed to issue modified custody warrants against the appe llants, namely, Anis Ahmed, Dilowar Hussain, Abul Hasen, Abu Hanifa, Jainal, Afa zuddin and Atabur Rahman. 27. Registry is directed to issue release order against the remaining appell ants who have either been convicted u/s 324 IPC or have been acquitted in this j udgment.