Gauhati High Court
Sahjahan Ali vs The State Of Assam on 23 February, 2015
Author: P. K. Saikia
Bench: P. K. Saikia, M. R. Pathak
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal (J) No. 73 of 2014
Md. Shahjahan Ali,
Son of Late Samar Ali,
R/O Saru Radha Ati
PS- Dhing
Dist. Nagaon, Assam.
Versus
The State of Assam
BEFORE
HON'BLE MR. JUSTICE P. K. SAIKIA
AND
HON'BLE MR. JUSTICE M. R. PATHAK
For the Appellant : Mr. Z. Alam, Amicus Curiae.
For the Respondent : Ms. S. Jahan, Addl. P.P., Assam.
Date of hearing : 23.02.2015
Date of judgment : 23.02.2015
Crl. A.(J). No. 73 of 2014
2
JUDGMENT AND ORDER (ORAL)
(P. K. Saikia, J) This appeal is directed against the judgment and order dated 31.05.2014 passed by the learned Addl. Sessions Judge, Nagaon in Sessions Case No. 312(N)/2011 convicting one Shahjahan Ali (hereinafter referred to as the 'accused person') herein of offence u/s 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 2000/- i / d R.I. for another 1 month for the offence aforesaid.
2. We have heard Mr. Z. Alam, learned Amicus Curiae, for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State.
3. The facts which are projected by prosecution in the FIR dated 13.04.2011 as well as in subsequent trial and which are necessary for disposal of the present appeal in brief are that on 12.04.2011 at about 12 mid night, the accused person came to the house of informant Musstt Jubeda Khatoon, allegedly for the purpose of stealing cattle. However, the deceased was somehow aware of presence of thief in their premises for which she got up from sleep and was sitting there for some time lighting a lamp. While she was so sitting in her house lighting a lamp, the accused, in order to escape from such place, hit the victim with lati, injured her and left the place of occurrence.
4. Though informant, Musstt. Jubeda Khatoon, attempted to capture the culprit, she could not do so since he sliped out and left the scene. Next day, in the morning, the victim was taken to Dhing Hospital where from she was taken to Civil Hospital, Nagaon where the victim succumbed to her injuries while she was still undergoing treatment. After the death of her mother, Musstt Jubeda Khatoon, daughter of the deceased, lodged an FIR with O/C, Dhing P.S. on 13.04.2011. On the receipt of the FIR, O/C Dhing P.S., registered a case vide Dhing P.S. Case No. 86/2011 u/s 302 IPC and ordered investigation.
5. During the course of investigation the police officer, who was entrusted with the investigation of the case, visited the place of occurrence, conducted inquest on the dead body, sent the same to the hospital for postmortem examination, examined the witnesses and did other needful and on the conclusion of investigation, he Crl. A.(J). No. 73 of 2014 3 submitted charge sheet u/s 302 IPC against the accused person and forwarded him to the court to stand his trial.
6. The learned Magistrate before whom charge-sheet was so laid, committed the case to the court of Sessions since the offence u/s 302 IPC is exclusively triable by the court of Sessions. On the receipt of case on commitment, the learned Sessions Judge transferred the case to the file of Addl. Sessions Judge, Nagaon for disposal in accordance with law. The learned Addl. Session Judge on the receipt of the case on transfer and on hearing the learned counsel for the parties was pleased to frame charge u/s 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.
7. During trial, the prosecution has examined as many as 8 witnesses including the M/O and the I/O. The statement of the accused person was recorded u/s 313 CrPC. Accused plea was of total denial. However, on being required, he declined to adduce any evidence on his own. On conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, the court below was pleased to convict of offence u/s 302 IPC and was pleased to punish him as aforesaid. It is that judgment which has been assailed in the present appeal.
8. Mr. Z. Alam, learned Amicus Curiae, appearing for the accused person vehemently submits that judgment under challenge cannot sustain since it suffers from several serious infirmities. In that connection, it has been submitted that the incident in question occurred at night and there is evidence to show that there was no arrangement of light at the place of occurrence and as such, how the witnesses, more particularly, PW 1 Musstt. Jubeda Khatoon, and PW 2, Marjina Khatun, could recognize the assailant in darkness remains far from being explained. Therefore, the very claim of those two witnesses that they could recognize the assailant of the victim on the night of 12.04.2011 is found to be extremely doubtful.
9. It has also been contended that on hearing hue and cry, many people reportedly come to the place of occurrence, moments after the alleged incident. But then, the prosecution premised its case only on the witnesses who are enormously partisan to the prosecution. It is submitted that it is a settled law that when neutral and natural witnesses are ignored without any excuse in order to accommodate the Crl. A.(J). No. 73 of 2014 4 relatives or related witnesses of the victim, the court needs to consider the evidence of such witnesses with caution and care. Since in the present case, the prosecution, kept the neutral and impartial witnesses beyond the arena of the case, and that too without assigning any reason, the court is duty bound not to place any reliance on such evidence in deciding the guilt or otherwise of the accused person, more so, when the accused is facing trial in a case involving offence as serious as offence U/s 302 IPC.
10. It is also the case of appellant that all the witnesses, more particularly, PW 1 and PW 2 improve their version as the case progressed from stage to stage. In that connection, it has been contended that though they did not tell the I/O some the very fundamental aspects of the prosecution case during investigation, they chose to divulge such episodes for the first time before the court during trial only. In other words, the evidence of those witnesses suffers from what is commonly called as contradiction.
11. Referring to the law on contradiction, it has been submitted that evidence of witnesses which suffers from such flaws are to be scanned applying stricter test. According to the learned Amicus Curiae, the evidence of those witnesses which are already riddled with some other infirmities of very serious nature become wholly unreliable for such evidence being found suffering from the vice of contradiction as well.
12. It is also the case of the accused person that though the victim was taken from hospital to hospital after the incident in question, there is absolutely nothing on record to show that the victim was so admitted in hospital or she was referred from hospitals to hospitals in pursuance to police requisition. Such a lapse, on the part of the prosecution, coupled with other infirmities, aforementioned, now, require the court to view the entire prosecution case with huge suspicion. In view of aforementioned infirmities learned Amicus Curiae submits this court to acquit the accused persons of offence u/s 302 IPC on setting aside the judgment under challenge.
13. Controverting such an argument, advanced from the side of learned Amicus Curiae, Ms. S. Jahan, learned Addl. P.P., submits that the contention of learned Amicus Curiae that there was no arrangement of light at the place of occurrence on Crl. A.(J). No. 73 of 2014 5 the night in question enabling the PW1 and PW2 to identify the assailant in the night in question is not true. In that connection, it has been submitted that there is undisputable evidence on record to show that on the night in question, the victim on sensing the presence of culprit in or around their house, got up from sleep, lit a lamp and sat in their gateway as well. When she was so doing either to pass off the trouble or to guard her property, the incident in question occurred. Being so, the allegation there was no arrangement of light for PW1 and PW2 to recognize the assailant of the victim is not true.
14. Regarding the allegation that the prosecution case was premised only on the evidence of relatives and related witnesses, learned Addl. P.P., submits that the incident occurred dead of night and it occurred in the house of the PW1 and as such, at such unusual hour, it would be too preposterous for anyone to expect the incident under consideration to be witnessed by any person other than family members of the victim. Under such circumstances, it is quite but natural for the prosecution to rely basically on the evidence of family members of the victim.
15. More so, when there is evidence on record to show that none other than PW1 and PW2 were there at the place of occurrence when incident aforesaid was in progress. Being so, the allegation that prosecution case was founded entirely on evidence of relatives to the total exclusion of other neutral and natural witnesses is without any basis. She therefore, submits this court to affirm the judgment of the trial court and to dismiss the present appeal.
16. In order to ascertain the merit of rival submission, we find it necessary to have a look at the evidences of witnesses and the evidence of doctor is taken up first. He is Dr. Mukut Bora who conducted the autopsy on the body of the deceased. He was examined as PW7. In his evidence , he deposes that on 13.04.2011, on police requisition, he conducted autopsy over the dead body of Mulukjan Khaton @ Bibi at Nagaon Civil Hospital, Nagaon and found the following:--
"A female stout fresh with rigor mortis. Swelling and bruise over right parietal region. Echymosis in brain membrane. Fracture on the right parietal bone. Extra Dural haematoma. Brain tissues depresses. Both bone of left forearm fractured.Crl. A.(J). No. 73 of 2014 6
In his opinion cause of death is due to head injury. The Ext. 1 is the post mortem Report and Ext. 1(1) is his signature."
17. The evidence of Doctor reveals that the deceased died on or about 12.04.2011 and such death was homicidal in nature and such death was occasioned by anti-mortem wound on the head of the victim although he also found both the bones of left forearm being broken.
18. Now let us see who inflicted such injuries on the victim on or about 12.04.2011 which occasioned her death next day. In that connection, we find it necessary to have a look at the evidence of PWs, more particularly, the evidence of PW 1 and PW 2.
19. According to Musstt. Zubeda Khatoon (PW 1), the incident took place 13 months back. It took place on one Tuesday at about 12 midnight. On that night, PW1, her sister Marjina and mother/deceased Mulukjan were there in their house. Around the mid night , on hearing movements of thieves around their house, her mother got down from bed and came to the doorway with a lamp in her hand and sat there. While her mother was so sitting there, someone came from behind and hit her mother on the head with a bamboo stick for which she screamed in pain and agony.
20. On hearing screams raised by her mother, she got up from bed, came to her mother and she caught the assailant and recognized him to be the accused Shahjahan. But she could not hold him back since he wriggled out of her clutches and left the place of occurrence hurriedly. In the meantime, she saw injuries on the head of her mother and her forearm as well. On seeing all these, she and her sister raised hue and cry which brought the neighboring people to their house whereupon she narrated the whole incident to the villagers including the fact that she could identify the assailant of her mother who was none other than Shahjahan.
21. Her younger brother Hussain Ali who was not present on that night also came home upon hearing about the incident. Thereafter, she along with her brother took the victim to Dhing Hospital in an auto rickshaw. But the victim was referred to Civil Hospital, Nagaon for better treatment. However, her mother expired at Nagaon Civil Hospital sometime later. Thereafter, keeping the dead body at Nagaon Hospital, Crl. A.(J). No. 73 of 2014 7 she went to Dhing Police Station and lodged an FIR. In the course of investigation, a post mortem was done on the dead body. According to PW1, her mother died of wound inflicted on her by the accused person on the night in question.
22. In her cross examination, PW 1 states that in the months before the occurrence, she along with her mother stayed in Rupahi where they had been working as laborers in a brick field and returned home only on 11.04 2001 in the afternoon. It is also in her evidence that on sensing some culprits in or around her house, her mother left the bed and lit a lamp. She further states that while her mother was sitting at their doorstep with a 'Chaki' in her hand , she along with her sister were continued to lie down on the bed.
23. In her cross examination, she further states that she mentioned the name of the accused as well as the name of his father in the FIR, that she tried to nab the thief on her own and that her sister did not try to catch the thief. She further says in her cross examination that her house was surrounded by the houses of Anarul, Kashem Bandary and Abdul Subham although there was no house on the southern side of their house. The suggestion that she did not try to nab the thief, that she filed a false case against the accused and that the accused did not commit any such act on the night in question as alleged by her were denied by PW1.
24. Coming to the evidence of the PW2, Smti Marjina Khatun , we have found that she is found saying that on the night in question , she along with her mother and sister (PW1) were in their house. Around the mid night, her mother awoke up being disturbed by movements of the some miscreants in and around their house. Her mother lit a lamp and looked out for the miscreants. But none could be noticed. However, she sat with the lamp near the doorway. But PW2 continued to lie down on her bed. In the meantime, the accused came and hit her mother on her head with a bomboo cudgel.
25. Her sister immediately jumped from the bed and caught the thief but the accused was successful in freeing himself from the clutches of the PW1. Both PW1 and PW2 started to scream which brought their neighbors to their house. In the meantime, her mother slumped to the ground and blood bleed profusely through her mouth and nostril. Though she was taken to hospitals for treatment, she breathed her last in the hospital at Nagaon. These two PWs were cross examined at length.
Crl. A.(J). No. 73 of 2014 8But nothing did emerge there-from to show that the evidence, rendered by these two witnesses, should not be accepted for one reason or the other.
26. We have also perused the evidence of PW 4, PW5 and PW6, namely , Md. Safiqul Hoque Mukta, Md. Abdul Hye and Saiful Islam respectively. On the perusal of the evidence of those witnesses, it is found that on the fateful night, there was hue and cry in the house of the victim for which they rushed to such place and found the mother of PW 1 and PW 2 in a severely injured condition. It is also their evidence that they came to know from PW 1 and PW 2 that assailant of their mother was none other than one Shahjahan, appellant in the present proceeding.
27. On considering the evidence of PW1 and PW2, we have found that on the fateful night, the accused, and none else, assaulted their mother, (the deceased) with some blunt object which hit victim on her head and hand which occasioned her death at Civil Hospital, Nagaon next day. We have also found that the evidence of Doctor reveals that the deceased died on or about 12.04.2011 on sustaining injuries on her hand and head. The evidence of Doctor, therefore, lends more and more support to the prosecution case.
28. It is worth noting that on 13.04.2011, the I/O of the case seized a bamboo baton on being produced by the son of the deceased on the strength of seizure list Ext3. Seizure of the bamboo baton on being produced by the son of the deceased on very next day of the incident under consideration, in the facts and circumstances of the present case, again supports the claim of the prosecution that the accused assaulted the victim on the night of 12/ 04 /2011 with the weapon, so seized, which caused her death at hospital next day.
29. We have also found that PW4, PW5 and PW6 came to the PO moments after the alleged incident and came to know from PW1 and PW2 that the accused hit and injured their mother and fled the scene moments before. There is nothing on record to disbelieve such claim, made by the PW4 to PW6. In our opinion , the evidence, so rendered by PW4 to PW6 becomes relevant u/s 6 of the Evidence Act and such evidence fortifies more and more the prosecution case that the accused hit and severely injured the victim on the night of 12/ 04 /2011.
Crl. A.(J). No. 73 of 2014 930. We may also note here that the credibility of the PW1 and PW2 or for that matter, the credibility of the prosecution case was questioned alleging that since the incident occurred at night and since there was no arrangement of light at the place of occurrence on such a night and since the prosecution case is founded entirely on the evidence of the relatives of the deceased, this court must not record a verdict of guilt against the accused person on the basis of such evidence of the PWs aforesaid. We have considered such allegations having regard to the evidence on record and found that all those allegations are without any substance. Our foregoing discussion would make it clear and same needs no further re-statement.
31. Now, let us see whether for the assault which caused the death of the deceased on 13.04.2011, the accused can be convicted of offence u/s 302 IPC. We have found that the accused came to the house of victim on the eventful night presumably to commit theft in her house. However, his effort had gone haywire as the victim came in the way. The evidence on record also demonstrates that he inflicted one fatal blow on the victim while trying to run away from the PO.
32. On further perusal of the record, we have also found that while trying to flee the scene, the accused hurriedly administered one fatal blow on the deceased which unfortunately landed on the vital part of the body of the deceased. Such revelations are, in our opinion, only show that the accused had no intention to kill victim. The fact that victim survived for a sufficiently long period without being provided with any treatment, lends more credence to our aforesaid finding.
33. When such facts are considered in the light of other attendant facts and circumstances, it needs to be concluded that on the materials on record, it cannot be said that the accused had committed offence u/s 302 IPC .But then, on reading the evidence on record on its entirety, we have found that the prosecution has successfully established the charge U/s 325 of the IPC against the accused person and as such, he is liable to be convicted under aforesaid provision of law which we accordingly do.
34. Considering all the aspects and having regard to the submissions, advanced by learned counsel for the parties, we deem it fit and proper to sentence the accused person imprisonment for a period of 7 (seven) years with a find of Rs. 5,000/- i.d., R.I. for another 6 months for the offence aforesaid.
Crl. A.(J). No. 73 of 2014 1035. In the result the appeal is partly allowed as indicated above.
36. Return the LCR.
37. We have found that the accused has been in custody since 14.04.2011 and such period is ordered to be set of against the period of sentence. Registry is directed to issue modified the jail warrant.
38. We deeply appreciate the assistance rendered by Mr. Z. Alam, learned Amicus Curiae. We, therefore, direct the State to pay him an amount of Rs. 7,000/- as being his professional fee. Same needs to be paid within a period of 3 months from the date of receipt of a certified copy of this judgment.
39. Since the deceased died a tragic death on 13.04.2011, we are of the opinion that in terms of Section 357A CrPC, some amount is required to be paid to the legal heir(s) of the deceased as compensation. Accordingly, we direct the State of Assam to pay an amount to the tune of Rs. 1, 00,000/- to the legal heir (s) of the deceased as being compensation.
40. Therefore, the State of Assam is directed to pay aforesaid amount to the State Legal Services Authority, Assam (in short, the SLSA) within a period of 3 months from the date of receipt of certified copy of this judgment. On the receipt of such amount, the SLSA, Assam shall place such amount at the disposal of the District Legal Services Authority, Nagaon.
41. On the receipt of the same by the DLSA, Nagaon, such compensation would be disbursed to the legal representative(s) of the deceased on proper identification in equal share.
JUDGE JUDGE
Rupam.
Crl. A.(J). No. 73 of 2014