Gauhati High Court
Tahir Ali @ Tayir Ali & Lalu Mia vs The State Of Assam on 21 May, 2015
Author: P.K.Saikia
Bench: P.K. Saikia, M.R.Pathak
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
CR L. Appeal (J) No. 18 of 2012
1. Md. Tahir Ali @ Tayir Ali,
S/o late Lokai Mia
2. Md. Lalu Mia,
S/o Late Merab Ali,
Residents of village- Garagram,
P.S. - Katigorah,
Dist :- Cachar, Silchar.
..... Appellants
-Versus-
State of Assam
..... R espondent
BEFORE
THE HON'BLE MR.JUSTICE P.K. SAIKIA
AND
THE HON'BLE MR.JUSTICE M.R.PATHAK
For appellants :- Ms. B. Bhuyan, Amicus Curiae
For the respondent :- Mr. K. Mazumdar, Addl. P.P.
Date of hearing
& Judgment :- 21-05-2015
JUDGMENT AND ORDER (ORAL)
(P.K.Saikia, J) This appeal is directed against the judgment dated 11.01.2012 rendered by learned Addl. Sessions Judge (FTC), Cachar, Silchar in Session Case No. 18/2012 convicting appellants, namely, (1) Tahir Ali @ Tayir Ali and (2) Lalu Mia of offence u/s 302/34 IPC and sentencing them to undergo imprisonment for life and also to pay fine of Rs. 5,000/- (Rupees Five Thousand) each, in default, RI for another 6 (six) months each for the offence aforesaid.
22. Being aggrieved by and dis-satisfied with the judgment aforesaid, appellants, (1) Tahir Ali @ Tayir Ali and (2) Lalu Mia (hereinafter referred to as accused persons) preferred this appeal from jail citing some serious infirmities in the judgment under challenge.
3. We have heard Ms. B. Bhuyan, learned Amicus Curiae appearing for appellants and Mr. K. Mazumdar, learned Addl. P.P. appearing for the State.
4. The case projected by prosecution in the FIR dated 21.11.2006 and in subsequent trial, in brief, is that on 20.11.2006 at about 12 noon, accused persons had forcefully taken away belongings of one Abdul Haque since deceased and in that process, they also assaulted him with a sharp weapon inflicting injuries on various parts of his body. Being so assaulted, the victim sustained serious injuries for which he was taken to hospital. However, while undergoing treatment at such hospital, he succumbed to the injuries on 22.11.2006.
5. In that connection, an FIR was lodged with I/C, Bihara Police Outpost on 22.11.2006. On receipt of such an FIR, I/C, Bihara Police Outpost made a GD Entry in that connection and forwarded the FIR to O/C, Katigorah PS for registering a case and for doing the needful. On receipt of the FIR, O/C, Katigorah P.S. registered a case vide Katigorah P.S. Case No.463/20096 u/s 342/326/307/379/34 IPC and ordered investigation. Since the victim died after lodgement of the FIR, subsequently, Section 302 IPC was also added.
6. Being so entrusted, I/C, Bihara Police Outpost, Haidar Hussain Laskar visited the place of occurrence, (PO, for short) examined the witnesses, caused an inquest to be done on the dead body through an Executive Magistrate, sent the dead body to hospital for post mortem examination, did the other things needful and on conclusion of investigation, he submitted charge-sheet u/s 342/326/307/302/34 IPC against accused persons and forwarded them to the court to face trial.
37. The Magistrate before whom the charge sheet was so laid committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. On receipt of the case on commitment, the learned Judicial Magistrate 1st Class, Cachar, Silchar transferred the case to the file of learned Addl. Sessions Judge (FTC), Cachar, Silchar for disposal in accordance with law.
8. On receipt of the case on transfer and on hearing the learned counsel for the parties, learned Addl. Sessions Judge (FTC), Cachar, Silchar framed charges u/s 394/302/34 IPC against accused persons and charges, so framed, on being read over and explained to accused persons, they pleaded not guilty and claimed to be tried.
9. During trial, the prosecution had examined as many as 8 (eight) witnesses including informant, Medical Officer (in short, 'MO'), who conducted autopsy and the Investigating Officer (in short, 'I/O') of the case. The statements of accused persons were recorded u/s 313 CrPC. The plea of accused persons was of denial. They, however, on being required, declined to adduce any evidence in their defence.
10. On conclusion of trial and on hearing the learned counsel for the parties, the court below was pleased to convict accused persons of offences u/s 302/34 IPC and sentenced them to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.
11. Ms. B. Bhuyan, learned Amicus Curiae for appellants submits that the judgment in question cannot be sustained since it suffers from several infirmities. In that connection, it has been contended that the prime prosecution witnesses are PW 3, PW 4 and PW 5. However, they differ with one another on fundamental points. To support such contention, it has been stated that according to PW 3, he alone and no one was there at the PO when the incident took place.
12. Quite interestingly, similar statement has been made by PW 5 who deposes that he alone witnessed the incident in question. Therefore, the 4 evidence of PW 4 and PW 5 cannot go hand to hand. Rather one demolishes the evidence of other evidence which, in turn, shattered the very basis entire prosecution case.
13. It has been stated that the exact place of occurrence could not be established by the prosecution side since the prime prosecution witnesses rendered different versions regarding the place of occurrence. Inability of the prosecution to locate the place of occurrence also throws the prosecution case to a maze of suspicion.
14. The learned Amicus Curiae further submits that the relationship between accused persons and the victim was cordial at all the material points of time. Therefore, the prosecution should have established the motive of accused persons in assaulting and killing the victim in the PO on the eventful afternoon Inability of the prosecution to establish the motive also administers a fatal blow to the prosecution case.
15. In the FIR serious allegations have been made which occurred on 20.11.2006. However, the FIR was lodged only on 21.11.2006 showing that there was a delay in lodging the FIR. However, such delay remained totally unexplained which, in turn, requires this Court to view the prosecution case with suspicion. On all those counts, the learned Amicus Curiae urges this Court to acquit accused persons of offence u/s 302 IPC on setting aside the judgment under challenge.
16. Ms. S. Jahan, learned Addl. P.P., on the other hand, submits that the testimonies of PW 3 and PW 5, the key prosecution witnesses, are symmetrical in all respects. The alleged infirmities in the testimonies of PW 3 and PW5 never exist in fact since a closure reading of the evidence of those two PWs does not show that they ruled out the presence of each other when the alleged incident took place.
17. A careful examination of evidence of those witnesses shows that both of them were very much present when the incident in question occurred at the PO 5 and therefore, the learned P.P. submits that the testimonies of PW 3 and PW 5 cannot be discarded as prayed for by the learned Amicus Curiae.
18. That apart, the deceased before his death made statements in the nature of dying declarations implicating the accused person with the offences in question. Such evidence, however, remains far from being discredited despite being brought under detailed cross-examinations. Being so, such dying declarations fortify more and more the prosecution case which warrant the conviction of accused persons of offence , they were charged with.
19 It has been also stated that apart from the evidence of PW 3 and PW 5, there is also extra judicial confessions made by accused persons before PW2 Md. Ismyl Ali and PW4 Md. Sarif Uddin which find support from the other materials on record which, therefore, places the prosecution case on a more and more firm footing.
20. These apart, there is evidence which shows that several witnesses saw accused persons returning from the PO which is little away from human habitation and where the victim was found lying in an injured condition, moments after the alleged incident. Such evidence again shows the huge complicity of accused persons in the crime under consideration.
21. Referring to the lapses in the prosecution case, so pointed out by the learned Amicus Curiae, Ms. S. Jahan, learned Addl. P.P. states that such lapses never exist in facts and therefore, there is no reason for this Court to view the prosecution case with suspicion. On all these counts, she therefore, urges this Court to dismiss the appeal on affirming the judgment under challenge.
22. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. But before we proceed further, we find it necessary to have a look at the evidence of the Doctor who conducted autopsy on the body of the deceased at Silchar Medical College & Hospital on 22.11.2006. He is Dr. Gunajit Das and was examined as PW 6. According to him, 6 on 22.11.2006, he examined the body of one Abdul Laskar and found the following :-
"Injuries : 1) One lacerated wound was present over the right temporal area of the scalp. Wound was stitched with three nos. of nylon, susar, size 4 x 2 c.m. with bone deep, fracture of right temporal bone present.
2) Upper end of left ear was lacerated and stitched with four nos. of nylon.
3) One lacerated injury was present over the left eye-
brow stitched with 3 nos. of nylon of size 4 x 2 c.m. and bone deep.
4) Multiple abrasions were present over the left side of the neck of size 3x 2 c.m. to 1 x 5 c.m.
5) Multiple abrasions were present on the abdomen of size 1 x 5 c.m. over the left shoulder joint of size 4 x 3 c.m.
Abdominal visera found congested.
Opinion: Opinion was given by Dr. Monoj Kr. Sinha- the death was due to coma resulting from head injuries as described. All the injuries were ante mortem and caused by blunt force impact and homicidal in nature.
Appros. time since death was 6-12 hours.
Ext. 2 is the P.M. report and Ext. 2(1) is the signature of Dr. Monoj Kr. Sinha. Ext. 3 is the inquest report and Ext. 3 (1) is the signature of Dr. Monoj Kr. Sinha."
23. A perusal of the evidence of the PW 6 reveals that the death of the deceased was homicidal in nature which was occasioned by the ante-mortem injuries found inflicted on his body. So situated, let us consider the evidence of prime prosecution witnesses who are none other than PW 3 and PW 5. For ready reference, the evidence of PW 3 and PW 5 is re-reproduced below:-
7"In his evidence, PW 3, Zakir Ahmed states that on the day of occurrence at 11/12 noon he went to cut grass at Amgulai near railway line. After 5 minutes Abdul Haque (deceased) also went to cut grass at the same place near railway line. Both the accused person Tahir Ali and Lalu Mia also appeared after a little while and accused Tahir Ali called PW 3 and the deceased to come there. Accordingly, as they went there, accused Tahir Ali dealt fist blow to the deceased and then snatched sickle from the hands of the deceased and started to give sickle blow on the person of the deceased. Accused Lalu also snatched sickle and dealt a blow on the body of the deceased. Then out of fear the deceased and took shelter in the house of Sirajul Haque (PW 1), where he found Ismail Ali (PW 2) and wife of PW 1. He reported the incident to them. He also stated that the deceased succumbed to the injuries on his person.
In cross, PW 3 stated that on being asked by accused persons why they were cutting grass from their land, both PW 3 and the deceased replied that the land does not belong to the accused persons.
PW 5, Rois Uddin in his evidence deposed that on the fateful day, he went to Bihara Railway Station in connection with business. According to him, while he was returning home, on the way he saw accused persons, namely, Tahir Ali and Lalu assaulting the deceased Abdul Haque near the railway track. When PW 5 tried to intervene, the accused persons threatened him, he immediately left the PO, went to the house of the deceased and informed his family members about the incident. PW 5 also told the family members of the deceased that he saw sickles in the hands of accused persons. On the following day, he came to know that the deceased died. In cross, PW 5 deposed that except him, no one was there at the PO. He also denied the suggestions put to him by the defence."
24. We have also found that the prosecution has also relied on the testimonies of other witnesses, namely, PW 1, PW 2, PW 4 and PW 7. In order to 8 appreciate the dispute before us, we also find it necessary to re-reproduce the evidence of those witnesses from the judgment under challenge:-
PW 1 Sirajul Haque Laskar deposed that on the fateful noon while he was on duty, his wife informed him over phone that accused persons had brutally assaulted his brother Abdul Haque (since deceased) for which he succumbed at the Silchar Medical College & Hospital, Silchar after two days of the occurrence. PW 1, further deposed that on getting the information, he went to the PO and on the way he found the victim being carried to Kalain hospital in an auto rickshaw by PW 2, Ismail Ali and PW 4, Sarif Uddin along with police. PW 1 also accompanied them to hospital. However, since the Doctors at Kalain Hospital could not provide the deceased better treatment, he was referred to Silchar Medical College & Hospital, Silchar. According to PW 1 when he asked the deceased about the incident, the deceased replied that when he along with PW 3 went to cut grass at Amgulai field, accused persons attacked the deceased with sickles. On returning from the hospital, on the next day, PW 1 lodged the FIR with police.
In cross, PW 1 stated that the place of occurrence is just one furlong away from his house. He also denied the suggestion that he was not informed by his wife regarding his brother (deceased) making any dying declaration that accused persons had assaulted him. PW 1 also denied the suggestion that on the eventful day, the deceased and PW 3 were cutting grass and vegetables from the land of accused persons. On being protested by accused persons, the deceased and Zakir Hussain (PW 3) scuffled with them and as scuffling was going, the deceased fell down into a pit below railway line.
"PW 2 is Ismail Ali who deposed that on the day of occurrence, he was in the house of PW 1. On that day, at noon, PW 3 went to the house of PW 1 and informed him that accused persons had 9 severely assaulted the deceased near the railway khant at Amlugai. Hearing this, PW 2 rushed towards the PO. However, on the way, he found accused persons were returning. On being asked accused persons why they had assaulted Abdul Haque (deceased), they told PW 2 to go to the spot and see. On his arrival at the PO, PW 2 saw the deceased in an injured condition. He immediately went to Bihara Police Station and informed the police about the incident. Then he and PW 4 lifted the victim and took him to hospital. The injured told to police that accused persons had assaulted him with sickle and hands. PW 2 also stated that police recorded the statement of the victim and thereafter the injured was shifted to S.M.C.H., Silchar where he expired after two days.
In cross-examination PW 2 denied all the suggestion that Abdul Haque (deceased) and PW 3 (Zakir Hussain) were cutting grass from the land of accused persons and on protest by accused persons, the deceased and PW 3 started scuffling with them in course of scuffling, the deceased fell down into the pit near railway line."
"PW 4 Sarif Uddin stated in his evidence that on the day of occurrence at about 11/12 noon, while he was at his home, he heard Zakir calling the inmates of the house of PW 1. He, on hearing cry of Zakir, went to the house of PW 1, where he found Zakir, Ismail (PW 2) and his wife (PW 1's wife). Then Zakir told them that accused Tahir and Lalu fell down Abdul Haque by assault at Amgulai. Then, he and Ismail (PW 2) rushed to the PO and saw Abdul Haque was lying in an injured condition by the sie of kacha road. The kachcha road is passed near the railway line. He added that at time Abdul Haque was in sense and he asked for drinking water, and Ismail went to nearby police outpost and informed police. Police also came at the PO immediately. Then, the injured was carried to police outpost with the help of police.10
He further stated that when he and Ismail (PW 2) were coming to the PO, they saw that accused persons were returning from the side of the PO and on query, Lalu told him that he assaulted the deceased and ot his brother. This witness also stated that the deceased in his statement before police stated that accused persons assaulted him.
In cross this witness denied the suggestion that the deceased sustained injuries while slipping down in the railway line."
"PW 7 is one Haidar Hussain who stated that on the day of occurrence, he was attached to Bihara Police Outpost as ASI. According to him, on that ill-fated day at about 1 pm, one Ismail Ali appeared at Bihara Outpost and informed him that two persons mercilessly assaulted a person at Amgulai near Railway track. On receipt of such information, PW 7 made a GD Entry in that connection with the incident in question. Thereafter, he proceeded to the PO and found that a person, Abdul Haque by name was lying there in an injured condition. Both Ismail Ali and PW 7 brought the injured to Bihara Outpost and his statement was recorded by PW 7. Ext. 4 is the GD Entry and Ext. 5 is the statement of the injured. He (PW 7) also deposed that after recording the statement of the injured he advised the PW 2 to admit him at Kalain C.H.C. wherefrom he was shifted to Silchar Medical College & Hospital, Silchar. But after two days of the occurrence the victim succumbed to the injuries at such hospital. PW 7 caused an inquest to be done over the dead body by an Executive Magistrate. He further stated that during investigation he prepared a sketch map of the PO, SI Indrewas Dihingia seized the sickle form the possession of accused persons. Ext . 6 is the seizure list and Ext. 6(1) is the signature of SI Indreswar Dihingia. M. Ext. 1 is the seized sickle. Ext. 7 is the sketch map. PW 7 also stated that he also recorded the statement of witnesses and collected the post mortem report. He also stated that SI, Dihingia 11 received Ext. 1, FIR, made GD Entry No. 443 and endorsed him to take preliminary step. He also stated that after completion of investigation he handed over the CD to SI Indreswar Dihingia. Sri Seba Singh was posted as SI of Bihara Police Outpost who submitted charge-sheet being found that the investigation was already completed.
During cross, he stated that Ext. 4- GD Entry does not disclose names of assailants or the injured. Ext. 4 was received at Bihara Police Outpost on 20.11.2006. He denied the defence suggestion that the statement of Abdul Haque was not recorded and present statement is manufactured by him. He also denied other suggestion advanced to him by the defence."
25. We have carefully perused the evidence of PW 3 and PW 5. The evidence of PW 3 and PW 5 clearly shows that they saw accused persons, who are appellants herein, assaulting the victim at the PO with a sickle which the deceased, according to PW 3, carried to the PO in order to cut grass from such place. They also saw them assaulting the victim with fists and blows.Though these PWs were brought under detailed cross-examination, yet, such cross- examinations reveal nothing to show that their evidence cannot be relied on for any reason whatsoever.
26. In their evidence, PW 2 and PW 8 stated that when they met the deceased after the incident, the deceased told him that he was attacked and injured by accused person.
27. It is worth noting that the statement which the deceased had rendered during investigation has been reduced to writing which was proved as Ext. 5. Ext. 5 also reveals that the deceased told the IO that on the fateful day, the deceased along with PW3 went to cut grass from the place of occurrence aforementioned. On arriving at the PO, they started to cut grass from the PO when accused 12 persons came there and snatching the sickles from them, they assaulted him with sickles and with fists and blows as well.
28. It may be stated that PW 2 too deposes that the victim told him that he was assaulted and injured by accused persons and he was so assaulted by fists and blows and also by sickles. There is nothing on record to disbelieve the dying declarations which the deceased made to the IO before his death and which was proved as Ext. 5 as well as to the PW 2. Such dying declarations, in our opinion, find support from the evidence of PW 3 and PW 5 on one hand and evidence of the Doctor on the other hand.
29. We have found that PW 2 deposes that on coming to know about accused persons assaulting the victim, he rushed to the PO and met accused persons on the way. On his enquiry, accused persons told him to go to the PO and see for himself what they had done moments before. PW 4 too states that the accused Lalu Mia told him that he had assaulted the victim on the eventful afternoon. Once again such evidence also remains far from being demolished.
30. It is worth noting here that there is evidence on record to show that other PWs who did not witness accused persons assaulting the victim at the PO, saw them coming from the side of place of occurrence moments after the alleged incident. They being found coming from the side of the PO which is situated little away from human habitation and that too, little after the alleged incident, in the facts and circumstances of the present case, became a huge testimony, of accused persons being the author of crime under consideration.
31. Our forgoing discussion reveals that the prosecution has established through the evidence of PW 3 and PW 4 that accused persons had assaulted the victim at the place of occurrence on the eventful noon for which he died at hospital on 22.11.2006 while undergoing treatment. The dying declarations made by the deceased before the PW 2 and the IO as well as the extra judicial confessions which the accused made before the PW 2 and PW 4 lends more and more support to the testimonies rendered by PW 3 and PW 5.
1332. We have also found that there are some other incriminating circumstances which we have already detailed hereinbefore. Such incriminating circumstances, places the prosecution case on more and more firm footing and therefore, there cannot be any hesitation in concluding that accused persons had assaulted the deceased inflicting severe injuries on his persons for which he died subsequently at hospital while undergoing treatment.
33. We have found that the prosecution case has been assailed on counts more than one. However, in view of out forgoing discussion, all the grounds are found to be far too feeble in causing any damage to the prosecution case. Therefore, in our opinion, all those allegations need to be discarded.
34. Considering the entire evidence on record, we have found that on the fateful day, the accused had attacked, assaulted and injured the deceased and they did so in furtherance of their common intention. We have also found that they assaulted the deceased with the intention of causing his death and they did so without there being any rhyme and reason.
35. Being so, in our opinion, the prosecution has successfully proved the charge u/s 302 IPC and as such, the trial court has rightly convicted him there- under and punished him as aforesaid.
36. Accordingly, the appeal, being found devoid of merit, is dismissed.
37. We deeply appreciate the valuable assistance rendered by Ms. B Bhuyan, learned Amicus Curiae in disposing the present appeal. We, therefore, order the State Legal Service Authority to pay her Rs. 7000/- (Rupees Seven Thousand) as being her professional fees within a period of 3 (three) months from the date of receipt of a certified copy of this judgment.
38. Return the LCR.
14JUDGE JUDGE arup