Gauhati High Court
Md. Ataur Rahman vs The State Of Assam on 16 November, 2011
Author: Amitava Roy
Bench: Amitava Roy, S. Talapatra
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA;
MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No.51 of 2006
Md. Ataur Rahman ... .... Appellant
- Versus -
State of Assam ... .... Respondent.
Advocates for the appellant : Mr. A. Choudhury, Mr. F. K. R. Ahmed Mr. S. Islam.
Advocate for the respondent : Mr. A. K. Mazumdar, Addl. Public Prosecutor, Assam.
BEFORE THE HON'BLE MR. JUSTICE AMITAVA ROY THE HON'BLE MR. JUSTICE S. TALAPATRA.
Date of hearing : 16.11.2011.
Date of judgment : 16.11.2011.
JUDGMENT & ORDER (Oral)
(Amitava Roy, J.)
1. The appellant who had been charged along with 5 others, inter alia, for the offence of murder and criminal conspiracy therefor having been convicted by the learned trial Court under Sections Crl. Appeal No.51 of 2006 Page 1 of 11 302/201 IPC is before this Court seeking redress. By the impugned judgment and order, on his conviction as above, he has been sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/-, in default, to suffer imprisonment for another 90 days for the offence under Section 302 IPC. Vis-à-vis the offence under Section 201 IPC he has been ordered to undergo imprisonment for four years and to pay a fine of Rs.500/-, in default, to suffer imprisonment for further 30 days. Both the sentences were, however, directed to run concurrently.
2. We have heard Mr. F. K. R. Ahmed, learned counsel for the appellant, and Mr. K. A. Mazumdar, learned Additional Public Prosecutor, Assam.
3. An F.I.R. was lodged with the Officer-in-Charge, Hojai Police Station, on 20.05.1998 by PW 1, Sushil Debnath, father of the deceased Krishna Gopal Debnath mentioning that the latter had been, on the previous day i.e. 19.5.98 at 7.50 P.M., kidnapped by two unidentified youth at the point of a pistol from the front of his (informant) shop 'Radhabinod' located in the old market area in Krishnanagar, Hojai. Hojai P.S. Case No.97/1998 under Section 365 IPC was registered and investigation was initiated, on the completion whereof, charge-sheet was submitted against 13 accused persons. Eventually, the learned trial Court framed charges against Crl. Appeal No.51 of 2006 Page 2 of 11 six persons including the present appellant. He having been charged under Sections 109, 120B, 201, 302, 364 and 365 IPC denied the same. The prosecution, at the trial that followed, examined 22 witnesses including the doctor, who had performed the post mortem examination on the dead body, as well as the investigating officer. Other witnesses were also examined in support of the fact that due to the unaccounted absence of the accused persons at the trial, warrant of proclamation had to be issued to be served on them. The evidence of these witnesses, however, does not have any bearing on the charge and therefore would not be referred to for the purpose of the instant appeal. At the completion of examination of the witnesses, the accused persons were examined under Section 313 Cr.P.C. in which they stood by their denial to the charges. The learned trial Court, however, on the basis of the evidence on record while convicting the accused/appellant as above, acquitted the co- accused.
4. The evidence on record in a nutshell has to be referred to for appropriately analyzing the arguments advanced. PW 1, Bibhas Modi, who on 30.5.1998 was the Circle Officer in Hojai, deposed about the exhumation of the dead body and the conduct of inquest thereon. According to this witness, the dead body when recovered was found with a rope tied around the neck. He stated that at that Crl. Appeal No.51 of 2006 Page 3 of 11 point of time the Officer-in-Charge, Hojai Police Station was present. He stated that later on he came to learn that the dead body was of Krishna Gopal Debnath, the son of the informant.
5. PW 2, Sushil Debnath, is the father of the deceased, Krishna Gopal Debnath and the informant in the case. He deposed that at about 8.00 P.M. of 19.5.1998 his brother Satyaranjan informed him over phone that three unidentified persons had picked up his son Krishna Gopal. He thereafter went to the Police Station and lodged the FIR, Ext-1. According to this witness, the dead body was recovered 8/9 days after the incident and that he had visited the Morajhar Police Station to identify the same. He admitted a ransom call from an organization over telephone which was recorded by the police in a cassettee. According to this witness, though he sought to identify the organization, the caller did not disclose the name thereof. He proved the seizure of the cassettee vide Ext-2.
6. The evidence of PW 3, Partha Choudhury and PW 4, Subhash Deb Nath, is not of any significance.
7. PW 5, Miss Tilaka Das, at the relevant time was a Scientific Officer , Questioned Documents Division, FSL, Guwahati. She deposed with reference to the documents containing the questioned as well as the specimen signatures of Gopal Chandra Sahu, Prem Crl. Appeal No.51 of 2006 Page 4 of 11 Chand Sahu and Himangshu Roy, three of the co-accused of the appellant, that the two sets of signatures matched by applying scientific tests.
8. PW 6, Sri Pradip Kumar Baruah, the then Senior Scientific Officer at F.S.L., Guwahati, deposed about a soil sample said to have been obtained from a spade and stated that on microscopic and other examinations the same tallied with the sample obtained from the place of occurrence. He proved the soil test report as Ext-6.
9. PW 7, Sri K. P. Goswami, who at the relevant time was the SDM & HO at the Nagaon Civil Hospital and had performed the post mortem examination, indicated in his evidence as follows :
"A decomposed deadbody with maggots all over it. Fracture on occipital, right and left temporal bone. Haemorrhage in both cerebral hemispheres. Right and left lung partially decomposed. Heart empty. Vessels hard. Other organs were found healthy."
In his opinion, death was due to shock and haemorrhage as a result of the head injury.
10. The testimony of PWs 8, 9, 11, 12 and 13 is of no relevance.
11. PW 10, Satyaranjan Deb Nath, the uncle of the deceased, disclosed that at about 7.00 P.M. in the evening of 19.5.1998 he was informed by an employee of a cycle shop situated behind that of his Crl. Appeal No.51 of 2006 Page 5 of 11 that his nephew (the deceased) had been kidnapped in a motor cycle. The witness thereafter informed PW 1. He further stated that the dead body was recovered about 8/10 days thereafter.
12. PW 14, Jamir Uddin, stated on oath that about 7/8 years prior to his testimony while he was working on his paddy field he heard hue and cry and went to the place of occurrence to see that police had recovered a dead body. He stated to have put his signature on the seizure list related thereto i.e. Ext-9(1).
13. PW 15, Abdul Bari, deposed that about 5/6 years prior to the trial the police had arrested the accused/appellant and called four villagers to accompany them. The witness stated that the appellant and another person showed them the way and also confessed that they had killed the informant's son and also led them to the place of occurrence. This witness also proved the seizure-list, Ext-9. In cross- examination this witness admitted the presence of 10/12 police personnel at the time of their visit at the place of occurrence. The terrorizing presence of a few arm wielding commandos was also mentioned.
14. PW 16, Md. Jayadur Rahman, stated that about 4/5 years prior to the trial, the dead body of a boy was recovered at Batakata forest Crl. Appeal No.51 of 2006 Page 6 of 11 reserve. In cross-examination he, however, conceded that he was unaware as to how the dead body was recovered.
15. PW 17, Maqbul Ali, testified that after the police had arrested the accused/appellant and another person from Hojai they took them to the place of occurrence being accompanied by 7/8 villagers. According to this witness, the accused/appellant and his companion showed the way and took them to the place of occurrence where the deceased was killed. The witness also stated that the accused/appellant admitted before them that he along with others had killed the boy. The witness also stated that the accused/appellant showed the place where they had buried the dead body. He proved as well the seizure list, Ext-9 with his signature thereon.
In cross-examination this witness deposed that the police showed to the accused/appellant and his companion the place/pit and asked them as to whether they had buried the dead body therein to which they answered in the affirmative. The witness clarified as well that he was not present when the dead body was removed from the pit and that he had not visited the place of occurrence. He stated as well that the accused/appellant and his companion did not confess their guilt in the presence of the persons thereat.
Crl. Appeal No.51 of 2006 Page 7 of 11
16. The evidence of PWs 18, 19 and 20 is not of any decisive significance and therefore is not being dilated upon.
17. PW 21, Sri Pratim Kumar Bora, who at the relevant time was a Judicial Magistrate First Class, Hojai, deposed that he had recorded the statement of one Azizur Rahman and Md. Arif Uddin under Section 164 Cr.P.C. which he proved as Ext-11 and Ext-12.
18. PW 22, Kishor Kumar Nath, is the Investigating Officer, who while narrating the steps taken by him in succession in connection with the investigation disclosed that the accused/appellant and his co-accused Abdul Rouf were separately arrested after 5/6 days of recovery of the dead body.
19. The accused persons did not examine any witness and, as referred to hereinabove, totally denied the charges levelled against them.
20. Mr. Ahmed, learned counsel for the appellant, has argued that the prosecution having failed to adduce any evidence worth the name to establish the charges against the accused/appellant, the impugned judgment and order ought to be interfered with in the interest of justice. While contending that the purported extra judicial confession of PWs 15, 16 and 17 is inadmissible in law, the same Crl. Appeal No.51 of 2006 Page 8 of 11 having been made in presence of the police, the learned counsel has urged further that the testimony of PWs 17 and 22 taken together, demonstrates that the accused/appellant did not lead the police to the recovery of the dead body. He argued that it is apparent on the face of the record that the dead body had been recovered by the Murajhar police even before the investigation in the case was initiated by the Hojai police. Referring to the evidence of PW 22 to this effect, the learned counsel has argued that the attempt on the part of the prosecution to rope in the appellant with the offence by involving him in the contrived process of leading to discovery is wholly sham. This is further affirmed by the admission of the Investigating Officer that the dead body was recovered before the arrest of the appellant, he urged. There being no evidence whatsoever to connect the accused/appellant with the offence Mr. Ahmed has prayed for his acquittal.
21. Mr. Mazumdar, learned Additional Public Prosecutor, on the other hand, has argued that the evidence of PWs 1, 10, 15, 16 and 17 taken together proved the charges against the accused/appellant beyond all reasonable doubt and therefore no interference with the impugned judgment and order is warranted. To reinforce his plea, reference has also been made by him to the evidence of PW 7, the doctor and PW 5, the Scientific Officer of FSL, Guwahati, and PW 6. Crl. Appeal No.51 of 2006 Page 9 of 11
22. We have duly considered the arguments advanced and have closely analysed the materials on record. As indicated hereinabove, though six persons including the accused/appellant were made to stand trial, all co-accused of his have been acquitted by the learned trial Court. There is no eye-witness to the incident. The Investigating Officer, PW 22, has amongst others disclosed that he commenced the investigation on the basis of a verbal information lodged even before the F.I.R. was filed. Nothing is forthcoming to indicate about the identity of the assailants either in the said verbal information or in the F.I.R.
23. Apart from the fact that the persons whose statements under Section 164 Cr.P.C. had been recorded, had not been examined at the trial and that their version thus is bereft of any probative value, evidence of PWs 15, 16, 17 and 22 read in conjunction does not impel us to conclude that the accused/appellant had led the police to the pit where allegedly the dead body was buried. The evidence of PW 5, the Scientific Officer, FSL, pertains to a document which admittedly has no nexus at all with the accused/appellant. The testimony of PW 6 centers around a soil test report to connect the soil said to have been collected from the spade with the sample of the earth of the pit from which the dead body was said to have been Crl. Appeal No.51 of 2006 Page 10 of 11 recovered by Murajhar police. The seizure-list of the spade, Ext-9, does not even indicate the presence of any grain of earth to connect the same with the pit material. The evidence of PWs 5 and 6 is, thus, of no avail to connect the accused/appellant with the offence alleged. No post mortem report has been proved. The evidence of the doctor conducting the autopsy also does not clearly disclose the nature of the injury and of the weapon capable of causing the same.
24. On the cumulative consideration of all the above, we are constrained to hold that the prosecution has failed to prove the charges against the accused/appellant. On a perusal of the impugned judgment and order we find ourselves in respectful disagreement therewith. The impugned judgment and order is, thus, set aside and the accused/appellant is directed to be released forthwith. He is acquitted of the charges.
25. The appeal is allowed.
JUDGE JUDGE
TUC
Crl. Appeal No.51 of 2006 Page 11 of 11