Gauhati High Court
Md. Badaruddin Ahmed vs State Of Assam on 12 May, 1989
Equivalent citations: 1989CRILJ1876
ORDER Y. Ibotombi Singh, J.
1. The appellant Badaruddin was tried for the murder of Tabibulla Hazarika and his son Matlabuddin Ahmed by the Court of Sessions, Darang. He is convicted and sentenced to imprisonment for life. In addition, he was also sentenced to a fine of Rs. 1,000/- and in default of payment of fine, he was directed to undergo another 6 months rigorous imprisonment. It is against this order of conviction recorded by the Sessions Judge, Darrang in Sessions Case No. 112 (D-M) of 1977 that the convict has preferred the present appeal from jail.
2. The prosecution story of the occurrence, as gathered from the 5 eye witnesses, is that on 1-10-74 at about 4 P.M. while Moinul Haque P. W. No. 4 was tending their cows in their land situated at Bordoulguri village, one male calf entered into a plot of land which was purchased by his father from one Hamir Ali. All of a sudden, Makibur Rahman alias Hafiz Ali (absconding accused) hurled a spear aiming towards the calf thereby causing a piercing wound on the right leg of the calf. Thereupon, Moinul Haque P.W. 4 raised hue and cry and in response to his alarm, his father Tabibulla Hazarika, mother Chandika Begum, brother Matlibuddin and his uncle Sahabuddin rushed in. At their sight, Hafiz went to his house leaving the spear threat. While Tabibulla Hazarika and his brother Sahabuddin were holding a discussion for reporting the matter to the village Gapnbura, they suddenly heard the sound of firing of gun and when they looked round they saw accused Badaruddin standing on the boundary of his homestead land holding one fire-arm in his hand. At the same time, Tabibullah Hazarika and his son Matlibuddin fell down on the ground as they received gun shot injuries on their persons. The two injured persons were immediately taken to their house. Nur Islam Hazarika, P.W. 7 hastened to Sipajhar Police Out Post and lodged the report Ext. 6. By that time, the accused Badaruddin appeared at the police Out post and he was immediately arrested by the Police. It is to be noted here that while Nur Islam Hazarika was away to police Station, the two injured persons succumbed to their injuries. Shri Tilak Chandra Saikia, a police Sub-Inspector, who was the House Station Officer of that Out Post during the relevant period, immediately forwarded the Ejahar to Mangaldoi Police Station for registration. Thereafter, he took up the investigation of the case.
3. During the course of investigation, he examined as many as 12 witnesses including 5 eye witnesses and seized one SBBL Gun of Belgium make Ext. 1 bearing No. Sl. 21669, two pellets Ext. 2, one sellier & Bullet, 12 bore cartridge Ext. 3, three MT. Cartridge Ext. 4, Ext. 5 and Ext. 6, one MT '12 bore sellier Bullet cartridge case Ext. 7 and another Pellet Ext. 8. It is to be noted here that according to the expert, Ext. 1 and Ext. 2 are the pellets of the shot Gun cartridge and the same were fired by using the SBBL Gun Ext. 3.
4. Dr. Narayan Ch. Talukdar, P.W. 1 performed autopsy over the two dead bodies of Tabibullah Hazarika and his son Matlibuddin Ahmed as identified by the two constables namely (1) Thaneswar Das and (2) Paniram Bora and one person namely Tamijuddin Ahmed. On examination of the dead body of Tabibullah Hazarika he found the following injuries:
(1) One wound of entry i.e. penetrating wound of gunshot wound 1/4" X 1/4" - margin inverted and lacerated 1'' above and to the right umbilicus. (2) One wound of exit communicating with the entry of wound No. 1 measuring 1/2" X 1/2" over the 10th left rupturing the spleen. (3) One penetrating wound of entry measuring 1/4" x 1 1/2" to the left and above the umbilicus. (4) One wound of exit 1/2" x 1/2" communicating with the wound of the entry No. (3) over the left lumber region posteriorly in the left scapular line. (5) One wound of entry (penetrating wound) 1/4" X 1/4" over the left 6th intercostal space in mammary line. (6) One swelling on the back just lateral to the 8th thorasic spine on the left side communicating with the wound of entry No. (5) one section over the swelling a lead missile (projectile) could be found and extracted. (7) One wound of entry 1/4" X 1/4" over the 6th right intercostal space just lateral to the right mammary line, (8) One wound of exit 1/2" x 1/2" on the back just below the inferior angle of right scapula. (9) One wound of entry 1/4" X 1/4" on the left 8th intercostal space lateral to the left mammary line. (10) One wound of exit 1/2" X 1/2" communicating with wound of entry No. (9) on the back, right 7th intercostal space in posterior axillary line. (11) One wound of entry 1/4" X 1/4" on left 8th intercostal space medial to the left mammary line. (12) One swelling on the back just lateral to the lateral to the 11th thorasic space on left side communicating with the wound of entry No. (11) on section over the swelling a lead missile (Projectile) could be found and extracted. (13) One abrasion 3/4" X 3/4" over the 4th intercostal space l 1/2" away to the right from the midline.
Thorax : - 6th & 7th ribs on the left side fractured. Pleurae : - Ruptured and pleural cavity contained blood.
Both the lungs ruptured and badly lacerated. Pericardium : - Lacerated Heart : - Left ventricle lacerated and ruptured.
Abdomen:
Peritoneum : - Lacerated and peritoneal cavity contained blood.
Right lobe of the liver ruptured.
Spleen : - Ruptured and badly lacerated.
Detailed description of the injuries:
The track caused by the wound of entry No. (5) and between the swelling No. (6) described in external appearance from which a lead missile extracted ruptured the left ventricle of the heart and lower part of the left lung (upper lobe).
The track between injuries Nos. (7) and (8) described in external appearance caused fracture of 6th and 7th ribs in the mid clavicular line (mammary line) on right side i and rupture of right lobe the liner and lower lobe of right lung.
The track between injuries Nos. (9) and (10) described in external appearance caused rupture of the left ventricle of the heart and lower lobe of the right lung.
The track between injury No. (11) and (12) - swelling described in external appearance ruptured the spleen.
The marginsot all the wounds of entries of the gunshot wounds are lacerated and inverted and all the wounds of exit-lacerated exerted.
The injuries are ante-mortem.
5-6. Two lead missiles M. Exts. 1 and 2 were extracted by him from the dead body and the same were seized by the police on his production. He was of the opinion that death of the deceased was due to shock and haemorrhage and as a result of gunshot injuries.
7. On examination of the dead body of Matlabuddin, he found the following injuries:
External Injuries:
(1) One punctured penetrated wound 1/2" X 1/4" cranial cavity 2" above and to the front from the top of the helix of the left ear. The edges of the wound lacerated and inverted.
(2) One punctured penetrated wound 1/2" X 1/2" cranial cavity 2 1/2" above and slightly posteriorly from the top of the helix of the right ear. The edges of the wound are lacerated and inverted.
Cranium and Spinal Canal.
Scalp - Haemorrhage clots are found on section in the layens of the scalp.
Skull - Left temporal, left parietal and right temporal and right parietal bones are fractured.
Membrane : - Lacerated under the injuries and congested.
Brain : - Lacerated. Thorax:
Pleurae, larynx and trachea and both the lungs are congested.
Abdomen:
Tharynx Congested.
Detailed description:
The injuries Nos. 1 and 2 described in external appearance are communicated each other. The membranes the brain matter are badly lacerated in the track and around the track.
Extradural, subdural and intra cerebral - haemorrhage present.
A semicircular leniar fracture measuring 10" in length involving left temporal, left parietal, right parietal and right temporal bones with two apertures one on the left temporal bone 1/2" x 1/2" and the other on right temporal parietal bones (1/2" x 1/2").
Injuries ante-mortem.
8. According to him death was due to coma as a result of injuries sustained by the fire arm projectiles i.e. gunshot wound.
9. In course of time, the Investigating Officer submitted charge-sheet against the two accused namely - (1) Badaruddin Ahmed and (2) Hafiz Ali showing the latter as absconder in the charge-sheet. The charge Under Section 302, I.P.C. was framed against the accused Badaruddin Ahmed who entered the plea of not guilty and claimed for trial.
10. The prosecution examined as many as 12 witnesses to establish the charge. Whereas the defence produced only one witness. On conclusion of the trial, the learned Sessions Judge found the accused guilty and therefore, he convicted and sentenced him in the manner as stated above.
11. In this case, there is no dispute that Tabibullah Hazarika and his son Matlabuddin sustained gun shot injuries while they were in their land and that they succumbed to their injuries at their house after a while. Likewise, there is no dispute that a shot gun cartridge which caused the death of the said two persons was fired from the S.B.B.L. Gun Ext. 3. This is proved beyond doubt by the oral evidence of P.W. 1, P.W.No. 4, P.W.No. 8 and P.W.No. 11, P.W.No. 12 and the defence witness Iliasuddin Ahmed and also by the report Ext. Kha of the expert. The evidence of these witnesses on the above points have not been controverted at all at the time of cross-examination. Further, the solitary defence-witness Iliasuddin Ahmed and the report Ex. Kha support the facts that the said S.B.B.L. Gun had been used in firing the said shot gun cartridge resulting to the death of the said two persons. The only defence contention was that it was Hafiz Ali (absconding accused) who killed the two persons and not the accused Badaruddin Ahmed.
12. Therefore, the only point for consideration is whether the accused Badaruddin Ahmed was responsible for the gun shot injuries sustained by the two deceased TabibAilla Hazarika and his son Matlabuddin Ahmed."
13. On this point, the prosecution relied on the evidence of the 5 eye witnesses namely (1) Mainul Haque, P.W. 4, (2) Smt. Chandika Begum, P.W. 5, (3) Tamijuddin Ahmed, P.W. 6, (4) Saidur Hazarika, P.W. 8 and (5) Sahabuddin Ahmed, P.W. 10. These witnesses are closely related to the deceased Tabibulla Hazarika and therefore their evidence are to be strictly scrutinised. Their evidence are discussed hereunder.
14. The evidence of Moinul, P.W. 4 is that the deceased Tabibulla Hazarika was his father. The deceased Matlabuddin was his brother. About 7 years back one day in the afternoon at about 4 p.m. while he was tending cows within their compound, one male calf entered into the plot of land which was purchased by them from one Hamir Ali. Hafiz Ali (absconding accused) who had same enmity with them in connection with the said plot of land, suddenly came towards them with a spear in his hand and speared on the right leg of the calf in his presence. In response to his alarm the deceased Tabibulla Hazarika, his brother Matlabuddin (deceased) his mother Chandika Begum and his uncle Sahabuddin rushed in. While his father and his said uncle were discussing for reporting the matter to the Gaonburah they heard the sound of firing of a gun and when he turned back he saw accused Badaruddin lowering the gun from his chest. Instantly, his father Tabibullah and his younger brother Matlab fell down on the ground. At that time, it was further added, his elder brother Babul, his two uncles Tamizuddin and Sahabuddin and his mother Chandika Begum were present at the place of occurrence. They took the two injured Tabibullah and Matlab to their house, but after a while they succumbed to the injuries. In his cross-examination, he denied that he did not state before the police that he heard the sound of firing while the conversations between his father and his uncle were going on regarding the calf. He also denied the defence suggestion that he did not state before the police that when he turned back he saw the accused lowering the gun from the chest. However, the Investigating Officer, P.W. No. 12 stated that he did not state before him that while his father Tabibulla and his uncle were discussing about the calf they heard the sound of firing and that on hearing the sound of firing when he turned back he saw accused Badaruddin lowering the gun from the chest.
15. The learned defence counsel has drawn our attention to the above statement of the Investigating Officer and submits that P.W. 4 never made his above statement before the police and that the same being his improved version cannot be relied upon. With the utmost respect to the learned defence counsel, we are unable to accept his above contention. Because, unless the particular matter or point in the previous statement sought to be contradicted is placed before the witness for explanation, the previous statement cannot be used in evidence. In other words, the drawing of the attention of the witness to his previous statement sought to be contradicted and giving of all opportunities to him for explanation are compulsory. If any authority is to be cited on this point we may conveniently refer to the case of Pangi Jogi Naik v. State . Further in the case of Tahsildar Singh v. State of U.P., it was also held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the statement sought to be contradicted was recorded by the police, it should be marked and exhibited. However, in the case in hand, there is nothing on the record to show that the previous statement of the witness was placed before him and that the witness was given the chance for explanation. Again, his previous statement was not marked and exhibited. Therefore, his previous statement before the police cannot be used. Hence, his evidence that when he turned back he saw accused Badaruddin lowering the gun from the chest is to be taken as his correct version.
16. The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in conformity with Section 145 of the Evidence Act to contradict the evidence given by prosecution witness at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradictory statement which he made before the police, and questioned him whether he did in fact made that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc., (any identification mark) and when the investigating officer who had actually recorded the statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the Investigating Officer would prove the statements B-l to B-l, B-2 to B-2 which are then exhibited as Ext. D. 1, Ext. D. 2 etc. (exhibition mark) in the case and will go into in evidence, and may, thereafter, be relied on by the accused as contradictions. In the case in hand, as was discussed in the above, the above procedure was not followed while cross-examining the witness to his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the gun from his chest to be his correct version.
17. Again, this witness, according to the learned defence counsel, simply stated before the Investigating Officer that he saw the accused Badaruddin holding the gun in his hand. I f that be the position, we do not think that there is any contradiction between his statement before the trial Court and the statement before the Investigating Officer. We said so, because, by making his said statement before the trial Court he was simply elaborating the manner as to how the accused was holding the gun. At any rate, his statements before the Police and the trial Court are not ones which cannot stand together. Hence we do not find any infirmity in his evidence which will discredit him as an unreliable person. Further, his above evidence also finds corroboration in the evidence of his mother Chandika Begum, P.W. 5 who testified that having heard the alarm raised by her son Babul, her husband Tabibulla (deceased) and her son Matlabuddin (deceased) being followed by her rushed to the place and that her two brother-in-laws Sahabuddin P.W. 10 and Tamejuddin also rushed in. She also deposed that while her husband and her brother-in-law Sahabuddin were talking about a "Mel" against Hafiz (absconding accused), the accused fired one round from a gun thereby causing gun shot injuries to her husband Tabibulla and her son Matlabuddin and that after a while her said husband and son succumbed to the injuries at their house. She denied the defence suggestion that her husband Tabibulla and her sons searched for Hafiz, that when they could not find him, they dismantled the wall of his house and that while they were doing so, someone fired one round from a gun thereby causing the death of her husband Tabibulla and her son Matlabuddin. She also denied to have stated that after her husband and her son sustained injuries, the accused Badaruddin came to the boundary of his land. By pulling the above suggested quest ion the defence had admitted that the absconding accused was not at or near the place of occurrence at the time of firing. She also denied the defence suggestion that she stated before the police that after the arrival of the accused Mahibur alias Hafiz (absconding accused), the accused Badaruddin also came to the boundary of their land and that Sahabuddin came to the place of occurrence only after she had shouted. By this suggested question, the defence attempted to discredit her evidence that while her husband was talking with Sahabuddin the accused Badaruddin fired the shot gun cartridge from the said SBBL gun. Undoubtedly, the Investigating Officer in his deposition before the trial Court stated that she made the said statement before him. But there is no evidence that the accused placed her previous statement before her to show that the Investigating Officer recorded her said statement and that she (witness) was given an opportunity for explanation. Further, the previous statement sought to be contradicted was not marked and exhibited. Therefore, by applying the principles formulated in the said cases to the present case it is taken that her above statement before t he t rial Court, that she saw the accused Badaruddin firing one round from the gun thereby causing injury to her husband Tabibulla and her son Matlabuddin is her correct version.
18. The evidence of Tamejuddin Ahmed P.W. 6 is that on 1-10-74 at about 4 p.m. while he was sitting at his house after cleansing his hands and feet, he heard the sound of firing of a gun from towards the place of occurrence. When he rushed to the place of occurrence, he found his brother Tabibulla and his brother's son Matlabuddin lying on the ground with gun shot injuries and her sister-in-law crying. When he looked towards the house of the accused Badaruddin, he found the latter standing with a gun looking towards them. He denied the defence suggestion that he did not make the above statement before the police. Undoubtedly, the Investigating Officer categorically stated before the trial Court that this witness never made the above statement. Now, it is well settled that omissions in statements of prosecution witnesses to police cannot be regarded as contradictions but that serious and glaring omissions can be relied upon as relevant circumstances. In the present case, the omission being as to the presence of the accused near the place of occurrence with the fire arm just after the occurrence, was one of serious nature and, therefore, it can be relied upon as relevant circumstance. In other words, the omission in his previous statement regarding the presence of the accused at that relevant time with the weapon of offence, if proved, will disclose that he was attempting to improve or develop the prosecution case which may have the effect of casting a doubt on the prosecution case as put forward before the Court and also on the veracity of the witness, at least to the extent of his implicating the accused Badaruddin. However, in the case in hand, the previous statement sought to be contradicated was not placed before him for explanation. In fairness, his previous statement was to be placed before him to show that he did not make the said statement and also to enable him to give explanation for such omission. But his previous statement was neither marked or exhibited. Hence, for the reasons stated above, his said statement before the trial Court that just after the occurrence, he saw the accused Badaruddin holding on fire arm in his hand is to be relied upon.
19. Now, remains the evidence of Saidur Hazarika P.W. No. 8 and Sahabuddin Ahmed P.W. No. 10. The evidence of Saidur Hazarika is that while he was trying to pull out the spear from the cow, he heard the sound of firing of the gun and when he turned round, he saw the accused Badaruddin lowering the gun from his shoulder from the compound of Hafiz (absconding accused), his uncle Sahabuddin was also found behind his house at some distance from his father. In his cross-examination he denied the defence suggestion that on the day of occurrence the accused Badaruddin had not come to the place of occurrence with the gun and that the accused did not fire any round. In spite of a lengthy cross-examination, the defence could not demolish his above statement and, therefore, his above evidence is to be relied upon.
20. The evidence of Sahabuddin P.W. K) is that after Hafiz ran away towards his house leaving the spear with the cow, the accused Badaruddin came out with a gun and after a while he heard the sound of firing of the gun from the western side of the place where he was cleansing his hands and feet. When he raised his head he saw the accused Badaruddin lowering the gun from his shoulder and immediately he saw his brother Tabibulla and his cousin Matlabuddin falling on the ground as a result of the gun shot injuries sustained by them. In his cross-examination he denied the defence suggestion that he stated before the police that both Badaruddin (accused) and Hafiz came together to the boundary of their lands and that after a while Hafiz left for his own house. He also denied the defence suggestion that he did not state before the police that the accused Badaruddin was carrying a gun and that on hearing the sound of firing when he looked towards the West, he saw the accused Badaruddin lowering the gun. But, here again, his previous statement sought to be contradicted was not placed before him for his explanation. Again, his previous statement was not also marked and exhibited. Therefore, for the reasons stated above, his statement before the trial Court is to be taken as his correct version.
21. Now, from the foregoing discussion of the statements of the 5 witnesses, it will be seen that Chandika Begum saw when the accused Badaruddin was firing the shot gun cartridge from the SBBL gun and that the other four witnesses saw the accused Badaruddin lowering the gun from the chest etc. just after the sound of the firing of the gun. Though the four witnesses did not actually see when the accused Badaruddin was firing the shot gun cartridge from the gun, their evidences are as good as the evidence of an eye witness. At any rate, the evidence of the eye witness Chandika Begum is corroborated by their evidence. Thus the evidence of these witnesses has sufficiently established that it was the accused Badaruddin who fired the shot gun cartridge from the gun Ext. 3 and not the absconding accused Hafiz. The learned defence counsel has pointed out some discrepancies in the statements of these witnesses and persuaded us to disbelieve the evidence of these witnesses. Undoubtedly, there are some discrepancies in the statements of these five witnesses. However, these discrepancies are not on material points and, therefore, the evidence of these witnesses cannot be disbelieved on the ground as submitted by the learned defence counsel.
22. The learned defence counsel has also vehemently urged that the above 5 witnesses are closely related to the deceased Tabibulla and his son Matlabuddin and, therefore, their evidence should be thrown out. We find it difficult to accept his above contention. Because, the evidence of a witness cannot be discarded or thrown out solely on the ground of a mere relationship if his evidence is found to be correct and reliable. Normally, a near relative is the last person to ignore the actual culprit and to falsely implicate an innocent person. If any authority is to be cited on this point, we may conveniently rely on the decision made in the case of State v. Bholasingh . In the case in hand, the evidence of the five witnesses are found to be true and, therefore, we do not find any acceptable reason for discarding their evidence solely on the mere ground of their relationship with the deceased.
23. The defence also made a faint attempt to persuade us to believe its contention that it was Hafiz (absconding accused) w ho caused the death of the deceased Tabibulla and his son Matlabuddin by examining Iliash Uddin, the elder brother of the accused Badaruddin. However, his evidence is not at all convincing. It appears that the accused Badaruddin and his brother Iliash Uddin (D.W. No. 1) (caused their brother Hafiz to abscond away and, thereafter, the accused Badaruddin surrendered before the police in order to show his innocence. Now, if the accused Badaruddin was innocent as contended by the defence, we do not find any plausible reason for his surrendering before the police. The fact that the accused Badaruddin surrendered before the police is sufficient enough to give rise to an inference that he was attempting to shift the burden from him to his brother Hafiz.
24. For the reasons stated above, we hold that the learned Sessions Judge rightly held that the accused Badaruddin was responsible for the injuries sustained by the deceased Tabibulla and his son Matlabuddin. We do not, therefore, find any ground which calls for our interference with the impugned order of conviction. The result is that the conviction and sentence passed by the learned Sessions Judge is hereby confirmed and the appeal is disallowed The accused is in the jail. He is to serve out the remaining period of his sentence.
S. Haque, J.
25. I agree.