Gauhati High Court
Md Billaluddin vs The State Of Assam on 16 August, 2013
Author: T. Vaiphei
Bench: T. Vaiphei, P.K. Saikia
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Crl. A. (J) 35/2009
Md. Billaluddin.
........Appellant
-Versus-
The State of Assam
...... Respondent
PRESENT
HON'BLE MR. JUSTICE T. VAIPHEI
HON'BLE MR. JUSTICE P.K. SAIKIA
For the Appellant ... Mr. C Bhattacharjee,
Learned Amicus Curie
For the respondent ... Mr. D Das, Learned
Additional Public
Prosecutor
Date of Hearing ... 16.08.2013
Date of judgment ... 16.08.2013
JUDGMENT AND ORDER (ORAL)
( T. Vaiphei, J) Crl. A. (J) 35/2009 Page 1 of 9 We have heard at length Mr. C Bhattacharjee, learned Amicus Curie and Mr. D Das, learned Additional Public Prosecutor, appearing for the State.
2. In this Criminal Appeal, the appellant has questioned the legality of the judgment and order dated 6.3.09 passed by the learned Sessions Judge, North Lakhimpur, in Session Case No. 20 (NL)/2008, under Section 302 IPC, convicting him under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of `. 3,000/- and in default thereof, to suffer rigorous imprisonment for another six months.
3. The facts of the case as projected by the prosecution is that on 02.09.06, one Md. Mazibur Rahman lodged an FIR at Doolahat Police Out-Post alleging that on 09.09.06 at about 5.30-6.00 P.M., while his father, namely Abdul Mannan, was returning from Borsola market to his residence on his bicycle, the appellant, who is none other than his own son-in-law, attacked him by causing several injuries upon him with sharp weapon for not providing him with rice and money. The police, thereafter, registered a regular case being Laluk PS Case No. 112/06, under Section 302 IPC and investigated into the case. The police conducted inquest over the dead body of the deceased and sent the dead body for post-mortem examination. The appellant was subsequently taken into the custody and the weapon i.e. dao was recovered at his instance near the place of occurrence preparing a seizure memo.
4. A number of witnesses were examined by the police. Having found Crl. A. (J) 35/2009 Page 2 of 9 a prima-facie case against the appellant, the police charge-sheeted him under Section 302 IPC to stand the trial. The case was ultimately committed to the learned Sessions Judge, Lakhimpur for trial. At the stage of consideration of the charge, the petitioner pleaded not guilty to the charge and claimed to be tried. The trial court examined 11 prosecution witnesses. The post mortem examination report conducted on the deceased, the inquest report, seizure list, the sketch map and Dolohat O.P.G.D. entry No. 07 dated 01.09.06 were exhibited by the prosecution in the course of the trial. An the conclusion of the trial, the learned Sessions Judge found the appellant guilty of the charge and passed the impugned judgment of conviction and sentence the appellant.
5. In convicting the appellant, the learned Sessions Judge basically relied upon the evidence on PW 6, 8 and 9, who are said to be the ocular witnesses to the incident. As the learned Amicus Curie has been seriously questioning the findings of the trial, we, at the out set, propose to go through the evidence of PW 6, 8 and 9. According to PW 6, he alongwith Md. Saiful Islam (PW8) and Md. Oaizul Islam (PW9), at the time of the occurrence were coming from their village on foot to Borsola market and when they were near the house of Abdul Ali, they saw the accused stabbing/injuring the deceased by means of a dao. This witness further deposed that when they asked him as to why he (appellant) was stabbing/injuring his father-in-law, he left the place of occurrence by taking his bicycle and that he (PW 6) along with PW 8 and PW 9 then came to Borsola market and told Ahizul Hoque about what they just saw. We have seen the cross-examination of PW 6 by the defense, which shows that nothing was brought out by the Crl. A. (J) 35/2009 Page 3 of 9 defense to falsify the testimony of PW 6. An attempt was made by the defense to contradict his deposition before the Court by his statement recorded by the police under Section 161 CrPC, but the defense did not confront PW 6 with his previous statement made before the police as required by Section 145, Evidence Act, 1872. Under these circumstances, no contradiction can be established by the appellant from the testimony of the PW 6. Coming now to PW 8, it is his testimony that on the date of occurrence, while he along with PW 6 and PW 9 were proceeding towards Borsola market on foot, they saw the accused stabbing his father-in-law (the deceased) by means of dao on the road. This witness deposed that when he asked as to why he was attacking his father-in-law, the appellant threatened him with the dao he was carrying and that thereafter, he along with PW 6 and PW 9 left for Borsola market and then narrated the incident to the said Md. Ahizul Hoque (PW1). The cross-examination of this witness also does not elicit anything to contradict his testimony which is otherwise natural and truthful and does not leave any room of doubting his credibility. The statement of PW 9 is that he along with PW 6 and PW 8 were coming to Borsola market on foot on the date of occurrence. According to this witness, when they were half a Kilometer away from the market, they saw the appellant beating/injuring the deceased at the place of occurrence. This witness, however, could not make out as to the nature of weapon used by the appellant for beating/injuring his father-in-law. When PW 9 protested against the beating, the appellant left the place on his bicycle. The cross-examination of this witness also does not reveal any major contradiction in the statement of PW 9. The contradiction sought to be brought out between the depositions made before the court and the statement recorded underSection 161 CrPC, does not stand closer scrutiny inasmuch as the Crl. A. (J) 35/2009 Page 4 of 9 procedure laid down in Section 145, Evidence Act was not followed and, as such, it cannot be said that there is any contradiction in his statement. The facts that these 3 witnesses reported the incident witnessed by them to PW1, has been corroborated by PW1 in his evidence, which strengthen the case of the prosecution.
6. At this stage, it may be noted that the nature of injury sustained by the deceased and cause of his death have not been disputed by defense. Therefore, it is not necessary to deal with the result of the post-mortem examination or the deposition of the medical officer who conducted post-mortem examination. The learned Amicus Curie refers to the testimony of PW 9, who could not recognize the weapon used by the appellant in causing the death of the deceased and submits that this has created serious doubt on the case of the prosecution. The trial court has recorded its findings, which are as under:
" W hy P W .9 had not recognized the incrim inating w eapon used by the accused at the tim e of injuring his father-in-law , Abdul M annan depends upon so m any factors such as he m ight have been at a littdistance from the other tw o persons i.e., P W 6, M d. Safuqul I slam and P W 8, M d. Saiful I slam or he had a w eak eye sight or seeing the incident he w as probably shaken, for w hich he had not put m uch attention, but these factors w ere not developed to the contrary by the accused at the tim e of cross- exam ination of these w itness. M d. Oaizul I slam (P W 9). So, the evidence given by P W 9, M d. Oaizul I slam that he could not recognize the incrim inating Crl. A. (J) 35/2009 Page 5 of 9 w eapon used by the accused at the of inflicting injuries on the person of his father-in-law seem s to be very natural and this natural evidence given by P W 9, M d. Oaizul I slam had established his evidence deposed in court to be trust-w orthy and believable."
7. In our opinion, the above findings of the trial court do not suffer from any infirmity. On the contrary, we are of the opinion that the trial court has correctly appreciated the evidence on record. The learned Amicus Curie also submits that there was discrepancy in the deposition of the witness with respect to whether the bicycle in question was taken away by the appellant or was lying at the place of occurrence at the time of the incident. The learned Amicus Curie also submits that there is no evidence to establish that this bicycle belongs to the appellant. The trial court has given the findings that these discrepancies cannot destroy the core of the prosecution case when the these three witnesses have categorically established that they saw the appellant causing several injuries on the deceased, which resulted in his death. In our view, whether the bicycle belonged to the appellant or not and whether the bicycle was left behind the appellant or not and whether the bicycle was taken away by him have paled into insignificance in the light of the ocular evidence adduced by the PW 6, PW 8 and PW 9. It is also the contention of the learned Amicus Curie that these three witnesses did not divulge the incident to the persons they met immediately after the occurrence but went to the market, which is at a distance of almost ½ km from the place of occurrence. According to the learned Amicus Curie, these witnesses told PW1 only for the first time when the matter was already known to the people present in the market. The trial court held that if this witness did not Crl. A. (J) 35/2009 Page 6 of 9 know those people who were in the market and, therefore, did not chose to divulge the matter to them, that cannot cast any doubt on the veracity of the testimony of these witnesses. On the contrary, their conduct in not divulging the incident to unknown persons is quite natural. It may be noted that these 3 witnesses did certainly narrated what they saw to PW 1 immediately after the occurrence. It the testimony of PW 1 that the occurrence had taken place in the evening on certain day on 2006, which was the market day at Borsola market; that he had a shop at Borsola market; that Saiful Islam (PW 6) along with Abdul Majid (PW 2) and two others came to him and told him about the incident that had taken place at Kalokhowa road and that at first PW 6 told him that he had seen a man assaulting another person but he did not mention their names, on his repeated demand, he told him that he had seen the appellant assaulting the deceased. PW 6 in his evidence also deposed that he did not tell the incident to any person other than PW 1. Similar is the case with the deposition of PW 8 and PW 9. In our opinion, these depositions are narration of facts immediately after the incident and are, therefore, relevant under Section 7 of the Evidence Act. The manner in which recovery of the dao was made at the instance of the appellant, has been dealt with by the trial court. However, it must be noted that the statement of the appellant with to the discovery of the dao under Section 27 of the Indian Evidence Act was not exhibited by the prosecution. Even then the recovery of the dao by the police as evidenced by the seizure list (Ext-2 has been proved. Moreover, the defense is unable to discredit the evidence of the prosecution witness as to the recovery of this weapon. In any case, the prosecution case has been clearly established by the evidence of the unimpeachable evidence of ocular witnesses such as PW 6, PW 7 and PW 9, and the suspicion sought to Crl. A. (J) 35/2009 Page 7 of 9 be created on recovery of the dao cannot otherwise destroy the core of the prosecution case.
8. Coming now to the motive of the murder, we may take note of the evidence of PW 3 who revealed that the appellant was married to his sister. She testified that the appellant had nothing to eat in his house, had come to their house on the day of occurrence and asked for some rice from the fair price shop. The witness further deposed that her mother refused to give him rice as she or nor her father was at homeat that time and that on that day her sister Nurjahan came to their house and reported that the appellant had beaten her for not giving him the rice and had demanded `5000/-. She also deposed that they did not allow her to return to the house of the appellant as she herself also refused to go back there. According to PW 3, in the afternoon of that day, when her father went to Borsola market, the appellant killed her father there. The testimony of PW 3, evidently throws light on the motive of appellant to murder his father-in-law. The appellant was obviously annoyed by the refusal of his in-laws to provide him rice from their fair price shop. On considering the materials on record, we are thus of the opinion that the prosecution has proved to the hilt that the appellant intentionally caused the death of the deceased by means of dao and that the injury inflicted upon the deceased are sufficient in the ordinary course of nature to cause his death. The learned Sessions Judge has rightly appreciated the evidence on record and has rightly convicted the appellant under Section 302 IPC, which is not liable to be interfered by this Court. On the contention raised by the learned Amicus Curie that the appellant was not asked in his examination under Section 313, CrPC as to whether he wished to adduce defense any evidence in his defense Crl. A. (J) 35/2009 Page 8 of 9 thereby denying him of a valuable right, it is obvious that the learned Amicus Curie did not go through the order dated 11-8-2008 passed by the trial court wherein he had called upon the appellant to enter his defense, which was declined by him. This completely answers the contention of the learned Amicus Curie.
8. For these above reasons, this appeal has no merit and is accordingly dismissed. The Amicus Curie shall be paid a sum of ` 5,000/- as his professional fees.
JUDGE JUDGE
Naba
Crl. A. (J) 35/2009 Page 9 of 9