Gauhati High Court
Md Nurul Haque Laskar vs The State Of Assam And 3 Ors on 9 January, 2020
Equivalent citations: AIRONLINE 2020 GAU 492
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/9
GAHC010020912015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 225/2015
1:MD NURUL HAQUE LASKAR
S/O LATE HAZI ABDUR RAHMAN LASKAR, R/O VILL. SONAPUR PART-I,
P.S. BARKHOLA, DIST. CACHAR, ASSAM.
VERSUS
1:THE STATE OF ASSAM and 3 ORS
2:MD. MOINUL HAQUE LASKAR
S/O LATE ABDUR RAHIM LASKAR
3:SELIM UDDIN LASKAR
S/O SAMSUL HAQUE LASKAR
4:MD. ENAMUL HAQUE LASKAR
S/O MD. MOINUL HAQUE LASKAR
ALL ARE R/O VILL. SONAPUR PART-I
P.S. BORKHOLA
DIST. CACHAR
ASSAM
Advocate for the Petitioner : MR.L R MAZUMDER
Advocate for the Respondent : PP, ASSAM
Page No.# 2/9
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT AND ORDER (ORAL)
Date : 09-01-2020 (Mir Alfaz Ali, J) Heard Mr. L. R. Mazumdar, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State and Mr. I. Alam, learned counsel for respondent nos. 2 to 4.
2. This appeal against acquittal has been filed by the informant Nurul Haque Laskar against the judgment and order dated 18.05.2015 passed by the learned Additional Sessions Judge, Silchar, in Sessions Case No. 21/2011, whereby, the learned Sessions Judge acquitted the respondent nos. 2 - 4.
3. The prosecution case as projected in the FIR (Ext.-1) was that on 12.06.2008, at about 02.30 p.m., the victim Taz Uddin Laskar blocked a channel used for irrigation, so as to divert water to their own land, which was objected by all the 7 (seven) accused persons named in the FIR. All of them were armed with spear, lathi, hoe, etc. and chased the victim Taz Uddin Laskar towards the house of Mizazur Laskar (P.W.1). The accused Mainul, Kamrul and Salim Uddin inflicted injuries on the head of the victim Taz Uddin by hitting with an axe and lathi and having received the injuries, the victim had fallen on the ground. Hearing hue and cry, P.W.7, Nurul Haque Laskar reached the place of occurrence and the accused persons attacked him too, with deadly weapons, however, one Muzi, Moyna and Badumiya rescued him. In the meantime, neighbouring people assembled and the accused persons left the place. The victim Taz Uddin was shifted to hospital, but he succumbed to the injuries. On the same day at about 05.30 p.m., P.W.7, Nurul Haque Laskar lodged the FIR, on the basis of which, police registered Borkhala Police Station Case No. 57/2008 under Sections 147/148/149/302, I.P.C. and commenced investigation. In course of the investigation, police recorded the statements of the witnesses, prepared the inquest report and sent the body for Post-Mortem examination. Dr. Gunojit Das (P.W.11) conducted the Post-Mortem examination, and found the following injuries on the body of the victim:
Page No.# 3/9 "Injury No. 1 - Lacerated injury of size 3 x 2 cm over the right side of face near zygama exposures underlying bone, Injury No. 2 - Lacerated injury of size 3 x 2 cm & scalp deep over front of forehead near the right eyebrows.
Injury No. 3 - Confusion of whole or right side scalp with haemotoma formation found on reflection.
Injury No. 4 - Comminuted fracture of right parietal bone with displacement of fragments.
Injury No. 5 - Extradural haemorrhage covering the whole of right parietal cortex area of brain causing flattering of parietal to be."
4. In the opinion of the doctor, death was due to coma resulting from the injuries sustained on the head. Injuries were ante mortem and caused by blunt weapon and death was within 16-24 hours before the Post-Mortem examination.
5. On conclusion of the investigation, charge sheet was laid against 4 of the FIR named accused persons, including the respondent nos. 2 to 4 and eventually all of them stood the trial.
6. In course of trial, learned Sessions Judge framed charge against all the 4 accused persons under Sections 302/34, I.P.C. to which, they pleaded not guilty. During the trial, accused Samsul Haque Laskar died and therefore, the trial continued against the respondent nos. 2 - 4. The prosecution examined 11 (eleven) witnesses to prove the charge.
7. Out of the 11 (eleven) witnesses, P.W.7 Nurul Hoque Laskar, deposed that his son Taz Uddin Laskar, deceased, went to the paddy field for irrigating the land. Suddenly he heard cry of his brothers Kamrul and Moinul shouting "Mar-Marila". Hearing such hue and cry, he rushed to the place of occurrence and found that Salim Uddin, Bhuttu, Kamrul @ Samsul Hoque and Moinul were running. They also shouted at P.W.7, saying, that they have already finished one and would finish him too. He also stated to have seen Moinul having a "Dao" in his waist and an axe in his hand. Accused Samsul had a bamboo lathi, Enamul @ Bhuttu had spade in his hand and the accused Salim had a wooden stick in his hand. He also stated, that by that time, Mizazur Rahman (P.W.1) came out of his house and the accused persons also Page No.# 4/9 threatened him. Having seen the other people assembled, the accused persons left the place.
Thereafter, Mizazur took him near his son, Taz Uddin Laskar and told him that Bhuttu assaulted Taz Uddin by a spade and Salim assaulted him with a Bamboo lathi. During cross- examination, he stated that he had found his son Taz Uddin lying in an injured condition in front of the house of Mizazur. During cross-examination, he was confronted with his previous statements and the contradictions were confirmed through the Investigating Officer (P.W.10), to show that he did not make all the above statements before the Investigating Officer and made a completely improved and embellished statement in Court.
8. P.W.8 stated that at the time of occurrence, he was in the house of one Aftar Uddin and hearing hue and cry, he along with Aftar came out and found Moinul and Salim coming out from the homestead of Mizazur (P.W.1). He also stated to have seen an axe in the hands of Moinul and a "Dao" in his waist and lathi in the hands of Salim. According to him, by that time, Mizazur also came out and told, that after assaulting Taz Uddin they were going from his house. He further stated that in the meantime, father of Taz Uddin, (P.W.7) also arrived there and the accused persons threatened him. During cross-examination, it was elicited that his house was at a distance of about 1 Km from the place of occurrence and he is closely related to the victim and P.W.7. It was further elicited from his cross-examination, that P.W.7 reached the house of Mizazur after 10-15 minutes of their arrival, as he was obstructed in front of the Mokam by the accused persons. The previous statements of this witness, recorded under Section 161, Cr.P.C. and confirmed through the Investigating Officer, shows that he also stood contradicted with his previous statement or material facts rendering his evidence in Court unacceptable or at least reducing its credibility.
9. P.W.9, the younger brother of the deceased, who also projected himself as an eye witness, deposed, that at the time of occurrence, he was grazing buffalos, wherefrom, he heard hue and cry at the paddy field. He further stated that he saw an axe in the hands of Moinul and a spade in the hands of Bhuttu and a wooden husking rod in the hands of Salim Uddin. He also stated to have seen Bhuttu and Moinul assaulting Taz Uddin Laskar with an axe. He further stated that on being insisted by Mainul, Salim also assaulted Taz Uddin Laskar. According to him, the deceased was chased from the paddy field and was assaulted in the house of Mizazur. What transpires from his evidence in Court is that the accused persons Page No.# 5/9 chased Taz Uddin Laskar and the assault took place in the house of Mizazur. He further stated that the accused persons also chased P.W.7, Nurul Haque Laskar and thereafter, left the place. During cross-examination, he stated that an altercation took place between Mainul and Taz Uddin at the cultivation field and he was at a distance of about 100 meters. He also stated that hearing hue and cry, he rushed to the house of Mizazur Rahman and found the deceased Taz Uddin Laskar lying with injuries, meaning thereby he also did not see the appellant assaulting the victim.
10. P.W.1, P.W.2, P.W.3 and P.W.4 were declared hostile by the prosecution as none of them had supported the prosecution version.
11. P.W.5 stated, that having heard Mizazur saying that Taz Uddin was lying injured in the Courtyard, he rushed to Mizazur Rahman's house and saw that Taz Uddin was lying there in an injured condition in the Courtyard of Mizazur. It was elicited during his cross-examination, that after his arrival at the place of occurrence, other persons including the P.W.7, father of the deceased, arrived at the place of occurrence. P.W.6 was a post-occurrence witness and he came later and heard about the occurrence.
12. Appreciating the evidence of the above witnesses as well as medical evidence adduced by P.W.11, the learned trial Court came to the finding that prosecution has not been able to prove the charges against respondent nos. 2 - 4 beyond reasonable doubt and acquitted them.
13. Aggrieved, the informant, father of the victim, preferred the instant appeal. The learned counsel for the appellant, Mr. Mazumdar submits, that at least 3 (three) witnesses namely, Nurul Hoque Laskar (P.W.7), Salkat Ali Laskar (P.W. 8) and Amiruddin Laskar (P.W.9) have consistently implicated the accused Bhuttu and Salim Uddin and therefore, the learned trial Court ought not to have acquitted all the respondents. Supporting the impugned judgment, the learned counsel for the respondent nos. 2 - 4 contends, that there was no legal evidence to substantiate the charge against the respondent nos. 2 - 4 and therefore, the impugned judgment of acquittal does not call for any interference by this Court.
14. We have considered the submission made by the learned counsel and carefully assessed and scrutinised the evidence brought on record. There is no dispute that the victim Page No.# 6/9 Taz Uddin met with an unfortunate death due to sustaining injuries and as such the only question is who inflicted the injuries leading to his death.
15. On our assessment of the evidence, we find that P.W.1, P.W.2, P.W.3 and P.W.4 as indicated above, were declared hostile by the prosecution and therefore, their testimony was not taken into consideration by the learned Sessions Judge. It is the settled position of law, that the testimony of the hostile witnesses does not get washed off the record, merely because of their being declared hostile or being disowned by the prosecution and the testimony of the hostile witnesses to the extend consistent with the prosecution case can very well be taken into consideration. However, on assessment of the oral testimony of these 4 (four) witnesses, we find nothing significant which could be of any assistance to the prosecution.
16. What transpires from the evidence of P.W.5 is that he reached the place of occurrence afterwards, hearing cry of Mizazur Rahman and had seen the victim lying there and as such, he was apparently not a witness to the occurrence. It is also revealed from his testimony that other witnesses including the P.W.7 arrived at the place of occurrence after him. The testimony of these witnesses, that all other witnesses including P.W.7 arrived at the place of occurrence after him, remained uncontroverted. On careful scrutiny of the oral testimony of P.W.7, the informant, we find that he was also not an eye witness to the occurrence, and he reached the place of occurrence later on, as is evident from the testimony of the P.W.5.
17. P.W.7 Nurul Haque Laskar who lodged the FIR himself, stated that having heard the cry of his brother, Kamrul, he rushed to the place of occurrence and saw Salim, Bhuttu, Kamrul and Mainul running towards the house of Mizazur Rahman and in the meantime, Mizazur also came out of his house and Mizazur told him that Bhuttu assaulted Taz Uddin Laskar with spade and Salim assaulted him with a Bamboo lathi. P.W.7 further stated that P.W.1, Mizazur Rahman took him to the victim. Thus, from the evidence of P.W.7 also it is abundantly clear that he did not see anyone inflicting injury to the victim Taz Uddin. P.W.8 stated that he came out along with Aftar Uddin and had noticed that Mainul and Salim were coming out from the homestead of Mizazur Rahman Laskar (P.W.1). He also stated to have seen Mainul with an axe in his hand and a "Dao" in his waist and Salim was with a lathi. In the meantime, P.W.7, father of Taz Uddin Laskar, also arrived there. If the evidence of P.W.8 and P.W.7 are read Page No.# 7/9 together, the same would show, that the testimony of P.W.7 and P.W.8 are contradictory and mutually destructive. If the evidence of the P.W.5 is believed, then the evidence of P.W.8, that he had seen Salim Uddin and Mainul Haque coming out from the house of Mizazur has to be disbelieved. During cross-examination, P.W.8 stated that his house was at a distance of 1 Km and he was also closely related to the victim. It is also in the evidence of P.W.8, that P.W.7 came to the place of occurrence after 10-15 minutes of his arrival. It is therefore, abundantly clear, from the oral testimony of P.W.7 and P.W.8, that none of them had seen any of the accused appellant assaulting the victim. Their evidence to the extent of seeing Salim and Mainul at the place of occurrence is also hardly worthy of inspiring confidence in view of the contradiction between them on material facts. Having seen the glaring inconsistency in the oral testimony of the P.W.7 and P.W.8, the learned trial Court was reluctant to rely on the oral testimony of these two witnesses, who tried to project themselves as eye witnesses.
18. P.W.9 who is the younger brother of the deceased also projected himself as an eye witness. During cross-examination, he has clearly stated, that hearing halla, he rushed to the place i.e. the house of Mizazur Rahman and found the deceased Taz Uddin with bleeding injury and by that time, he expired. In the examination-in-chief also he stated that the occurrence of assault took place in the house of Mizazur Rahman. According to him, upon instigation of Mainul, Bhuttu assaulted the victim with an axe and on being instigated by Mainul, Salim also assaulted the victim. Though he stated in his examination-in-chief that Bhuttu and Mainul assaulted the victim with an axe, he has not attributed any weapon to Salim. He further stated that he had seen the deceased being chased from paddy filed towards the house of Mizazur Rahman. Evidently, he was grazing buffalos at a distance of 100 m. If the occurrence had taken place in the house of Mizazur Rahman, where he arrived after the incident of assault was over, his evidence of witnessing the assault also appears to be improbable.
19. We also take note of the fact, that previous statement of this witness recorded under Section 161, Cr.P.C. was not available in the case diary. Learned Sessions Judge also took note of the absence of the previous statement of P.W.9 in the diary, and took an adverse inference against the prosecution with the observation that defence was deprived of cross- examining this witness effectively. During the course of argument, the same point was again Page No.# 8/9 raised and we brought the copy of the diary for our perusal. But we note with utter surprise, that the said carbon copy of the diary contains a purported previous statement of P.W.9 which has been recorded later on, very recently. This apart, the so-called previous statement of the P.W.9 produced before us depicted a different story totally inconsistent with what the P.W.9 stated in his evidence in Court. As already indicated above, in the medical evidence, that no injury on the body of the victim by a sharp weapon like axe or hoe was found and all the injuries were caused by blunt object, which further deepen the doubt about the veracity of the oral testimony of the P.W.9.
20. Apparently the statement of this witness was purportedly recorded by the police after about 17 days. The pagination of the diary also raises doubt about the recording of statement of P.W.9 by the Investigating Officer. In view of all these suspicious circumstances surrounding the previous statement of the P.W.9, the contention of the learned defence counsel that P.W.9 was a planted witness cannot be brushed aside outright. What therefore emerges from the totality of the evidence and materials brought on record is that prosecution evidence falls short of proving the charge against the appellants beyond reasonable doubt.
21. In view of the above facts and circumstances, the conclusion arrived at by the learned Sessions Judge to hold, that the charge against the respondent nos. 2 to 4 has not been proved beyond reasonable doubt appears to be quite reasonable.
22. The scope of interference with the order of acquittal is well settled. Although, the power of the High Court is same in an appeal against acquittal as well as appeal against conviction, the appeal against acquittal obviously stands on a different footing in as much as, an order of acquittal strengthens the presumption of innocence in favour of the accused. Therefore, an appeal against acquittal is circumscribed by the limitation that no inference is to be made with the order of acquittal, unless the approach of the lower Court is vitiated by some manifest illegally or the conclusion recorded by it is such as could not have been possibly arrived at by any Court acting reasonably. Therefore, unless the order of acquittal suffers from gross illegality or miscarriage of justice is caused or found to be manifestly unreasonable, the inference with the order of acquittal is not called for. Even when two views are possible, the appellate Court is not supposed to substitute the view of the learned trial Court by its own view to disturb the finding of acquittal.
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23. In Shyam Babu-Vs.-State of U.P. reported in AIR 2012 SC 3311, the Apex Court observed that interference in appeal against acquittal is permissible only if the decision of the trial Court is perverse. It was held that if two views are possible on same set of evidence, then the appellate Court need not substitute its own view in preference to the view of the trial Court.
24. The Apex Court in Ashok Rai -Vs.- State of U.P. and Ors. 2014 5 SCC 713 observed that unless the appellate court finds the order of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reason to interfere with it, it should not interfere with such judgment.
25. Keeping in view the above principle, we once again surveyed the evidence and materials brought on record, and are of the considered opinion that the findings arrived at by the learned trial Court in the present case can by no stretch or imagination be said to be unreasonable and therefore, we find no reason or any compelling circumstance to interfere with the order of acquittal recorded by the learned trial Court.
26. For the reasons stated above, we find no merit in this appeal against acquittal. Accordingly, the appeal stands dismissed. Send down the LCR.
JUDGE JUDGE Comparing Assistant