Gauhati High Court
Abdul Khaleque Sardar @ Abdul Khaleque & ... vs State Of Assam on 25 October, 2016
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam: Nagaland: Mizoram & Arunachal
Pradesh)
Crl. Appeal No. 123 /2013
1. Abdul Khaleque Sardar @ Abdul Khaleque
S/o- Late Samer Sardar.
2. Md. Nafaluddin
S/o- Motiour Sardar
(Both are resident of Village Barjana,
P.S.- Jogighopa, District- Bongaigaon, Assam)
...... Appellants
-versus-
The State of Assam
...... Respondent
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE MANOJIT BHUYAN
For the Appellants : Mr. HRA Choudhury,
Senior Counsel
Ms. R. Choudhury,
Advocate.
For the State Respondent : Mr. K. Knowar
Additional Public Prosecutor, Assam.
Date of Hearing & Judgment : 25.10.2016
Crl. App 123 of 2013
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JUDGMENT & ORDER (ORAL)
(M anojit Bhuyan, J.)
1. Heard Mr. H.R.A. Choudhury, learned senior counsel representing the appellants, assisted by Ms. R. Choudhury, Advocate. Also heard Mr. K. Knowar, learned Additional Public Prosecutor, Assam. The two appellants i.e. Abdul Khaleque Sardar @ Abdul Khaleque and Nafaluddin have been convicted for causing the death of Amir Hussain and sentenced to undergo rigorous imprisonment for life and also to pay fine with default stipulation. Whereas Abdul Khaleque has been convicted under Section 302 IPC, Nafaluddin has been convicted under Section 302/341 IPC.
2. On 05.07.2004 an ejahar (Ext. 1) was lodged by Basher Ali (PW-1) before the Officer-in-charge, Joghighopa Police Station alleging that around 7.30 P.M. of 04.07.2004 while his son Nazrul Islam (PW-3) along with his nephew Amir Hussain (deceased) and his younger brother Mahir Ali (PW-11) were coming from Malegarh market, they were waylaid by the persons named in the FIR in furtherance of a pre-planned conspiracy. The appellant no. 1 Abdul Khaleque killed Amir Hussain by dealing a dagger blow in the back from behind. Grievous injury was also caused to Mahir Ali resulting from assaults on several parts on his body with iron rod. On alarm being raised, many people from Malegarh market came to the place of occurrence and although the accused persons fled the scene, people apprehended two accused persons namely Ismail Sardar and Rejak Sardar. Based on the said first information, Jogighopa P.S. Case No. 41/ 2004 dated 05.07.2004 was registered under Sections 147/148/325/302 IPC. Investigation of the case was carried out by Bhupendra Nath Das (PW-13), who at the relevant time was working as Sub Inspector of Police, Jogighopa Police Station. The said investigation resulted in charge-sheeting five accused persons, including the appellants herein. The case was committed to trial with formal charge being framed. Before proceeding further it is placed on record that out of the five Crl. App 123 of 2013 3 accused persons sent up for trial, save the two appellants herein, the other three were acquitted by the trial Court.
3. To bring home the charge against the appellants, as many as 14 (fourteen) witnesses were examined from the prosecution side including the Investigating Officer and the Medical Officer who had conducted the post- mortem examination on the deceased Amir Hussain. From the defence side, three witnesses had also been examined. After close of evidence, the appellants were examined under Section 313 CrPC and were also heard on the quantum of sentence under Section 235(2) CrPC.
4. Sona Mia (PW-2), who is related to the informant Basher Ali from paternal side, along with Nazrul Islam (PW-3), who is son of the informant and Asaruddin (PW-4), who is the younger brother of the informant deposed as eye witnesses to the incident. To place on record, the conviction and sentence of the appellants are based on the testimonies tendered by the said PW-2, PW-3 and PW-4. According to Sona Mia (PW-2), in the evening of 04.07.2004 he had gone to Malegarh market. In the said market, Nazrul Islam (PW-3) had asked that he be escorted to his home and accordingly Asaruddin (PW-4), Mahir Ali (PW-11), Rahimuddin (PW-5) along with Amir Hussain (deceased) had escorted Nazrul Islam. While reaching near the Kali Temple he saw the appellants including three others standing as well as many other people. Among those people, one Motleb Sardar, Bakka Sardar and Sultan Sardar Mahmud shouted "dhar dhar, mar mar". Then Nafaluddin (appellant no. 2) caught hold of Amir Hussain's hand and when Abdul Khaleque (appellant no. 1) attempted to flee after dealing dagger blow on Amir Hussain from behind, Sona Mia held him by his shirt. However, Abdul Khaleque pushed him and fled towards the hill. Amir Hussain fell down after having sustained blows. Alarm was raised and people from nearby Malegarh market arrived at the scene and intercepted two accused persons i.e. Ismail and Rejjak who had launched the attack. PW-2 then lifted Amir Hussain on his shoulder and took him to the house of Azahar Ali (DW-1). According to Crl. App 123 of 2013 4 him, a little later Amir Hussain died. He also deposed that Police had arrived and took away Ismail, Rejjak and the dead body of Amir Hussain and that he had also been examined by the Police.
5. Nazrul Islam (PW-3) also deposed in line with PW-2 and stated that Nafaluddin (appellant no.2) caught hold of Amir Hussain's hand and Abdul Khaleque (appellant no.1) stabbed Amir Hussain in the back with a dagger. He also stated that the day following the date of the incident, he gave statement to the Police about the incident in similar terms as he has deposed before the Court
6. Asaruddin ((PW-4) also corroborated the testimonies of PW-2 and PW- 3 and also deposed that as soon as Nafaluddin (appellant no.2) caught hold of Amir Hussain's hand, Abdul Khaleque (appellant no.1) stabbed Amir in the back with a dagger.
7. Dr. Prasanta Kumar Das (PW-14), as the Medical and Health Officer of Goalpara Civil Hospital, conducted the post-mortem examination on the dead body of Amir Hussain on 05.07.2004 and found one penetrating wound on the left side of the chest pierced from back to the front. In his opinion, death was due to shock and haemorrhage as a result of injuries sustained, which was ante-mortem in nature. The post-mortem report prepared by PW-14 was exhibited as Ext. 7.
8. For the purpose of deciding this appeal and in so far as the part played by both Abdul Khaleque and Nafaluddin are concerned, it is found that their conviction and sentence was based on the evidence of the three eye- witnesses, namely, PW-2, PW-3 and PW-4. The trial Court also recorded that from the evidence of the said three eye-witnesses, it was crystal clear that on the relevant day i.e. 04.07.2004, Nafaluddin had caught hold of the hands of Amir Hussain and Abdul Khaleque gave a blow with a dagger causing injury Crl. App 123 of 2013 5 on his back, resulting in the death of Amir Hussain. The trial Court also held that the part played by Abdul Khaleque and Nafaluddin constituted part of a single transaction.
9. Mr. HRA Choudhury, learned senior counsel submits that save and except PW-8, 9 and 10, besides the Doctor and the Investigating Officer, all other witnesses are interested witnesses, being related to the informant Basher Ali. He submits that going by the first information, Mahir Ali (PW-11), although being the brother of the informant and uncle of the deceased, was the best person whose testimony should have been relied upon rather than of PW-2, PW-3 and PW-4. According to Mr. Choudhury, it is apparent from records that Mahir Ali had also sustained grievous injury in the incident but the deposition of Mahir Ali do not lend support/corroborate the testimony of PW-2, PW-3 and PW-4. It is contended that a plain reading of the deposition of Mahir Ali clearly creates a doubt regarding any overt act on the part of Abdul Khaleque.
10. Mr. HRA Choudhury has also taken us to the statements made by PW- 2, PW-3 and PW-4 before the Police under Section 161 CrPC to demonstrate that the deposition of PW-2, PW-3 and PW-4 made before the trial Court are nothing but improved versions. Particular reference is made to show that none of the police statements of the said three eye-witnesses contains any depiction that Nafaluddin (appellant no. 2) had caught Amir Hussain's hand when Abdul Khaleque had dealt dagger blow on Amir Hussain's back. In this respect, Mr. Choudhury submits that the said so-called eye-witnesses had tendered false evidence and, therefore, the evidence tendered by them being unreliable, no conviction and sentence could be based on such false deposition. It is stated that on the doctrine of falsus in uno, falsus in omnibus (false in one, false in all), the entire evidence of PW-2, PW-3 and PW-4 are liable to be discarded. Mr. Knowar, learned Additional Public Prosecutor, on the other hand, submits that there is no infirmity in the conviction and sentence meted out to the appellants, as the same has its basis on cogent, Crl. App 123 of 2013 6 consistent and reliable evidence tendered by the prosecution witnesses, particularly by the eye-witnesses to the incident, namely, PW-2, PW-3 and PW-4. Mr. Knowar also submits that narration of the dagger blow inflicted on Amir Hussain find support from the medical evidence.
11. We have heard the counsels at length and have also closely perused the materials on record. We find from the narration of the crime, right from the ejahar dated 05.07.2004 to the statements and depositions made by Sona Mia (PW-2), Nazrul Islam (PW-3) and Asaruddin (PW-4), both under Section 161 CrPC and before the trial Court, unerringly demonstrating that Abdul Khaleque (appellant no.1) had dealt the fatal dagger blow on the back of Amir Hussain. The fatal wound so inflicted on the back of Amir Hussain also finds corroboration from the medical evidence. In so far as Nafaluddin (appellant no.2) is concerned, a perusal of the evidence goes to show that their deposition made before the trial Court, as regards the role played by Nafaluddin, do not find any utterance/mention in their statements under Section 161 CrPC. Apparently, their deposition roping in Nafaluddin is an improved version made before the trial Court.
12. Notwithstanding the improvement made by PW-2, PW-3 and PW-4 in their deposition, the doctrine of falsus in uno, falsus in omnibus, pressed into service by Mr. Choudhury, cannot come to the aid of Abdul Khaleque. It is well settled in law that the said doctrine/maxim do not apply in criminal cases in India. In this connection, reference can be had to the case of Kulwinder Singh v. State of Punjab, reported in (2007) 10 SCC 455 and in the case of Ranjit Singh and others v. State of Madhya Pradesh, reported in (2011) 4 SCC 336. In the said cases it has been held that Court has to assess as to what extent the deposition of a witness can be relied upon. A witness can be partly truthful and partly false and it is for the Court to separate the falsehood from the truth. It is only in exceptional circumstances when it is not possible to separate the grain from the chaff because of the depositions Crl. App 123 of 2013 7 being inextricably mixed up, that the whole evidence of such witness can be discarded. In the present case, what is not believable from the part of evidence tendered by PW-2, PW-3 and PW-4 are in respect of the deposition bringing in the involvement of Nafaluddin in the crime, having regard to their statements made under Section 161 CrPC. To this extent, the deposition of the said witnesses cannot be relied upon. As a result, benefit of doubt creates in favour of Nafaluddin (appellant no.2). To reiterate, in so far as Abdul Khaleque (appellant no.1) is concerned, we find that the evidence tendered by PW-2, PW-3 and PW-4 read along with the ejahar, their statements in the police diary and the post-mortem report, there is unerring consistency in the prosecution case establishing the guilt of Abdul Khaleque beyond all reasonable doubt, linking him to the commission of the crime.
13. For the all the discussions and findings above, criminality on the part of Abdul Khaleque finds fully established and to that extent we hold that the conviction and sentence imposed upon Abdul Khaleque by the trial Court do not call for any interference. In so far as Nafaluddin is concerned, benefit of doubt creates in his favour and to that extent the conviction and sentence imposed upon Nafaluddin by the trial Court stands set aside and quashed. Resultantly, Nafaluddin is directed to be set at liberty forthwith, if not wanted in any other case. The present appeal stands partly allowed in terms of the findings and directions above.
JUDGE CHIEF JUSTICE Kishor Crl. App 123 of 2013