Gauhati High Court
Md. Moinul Hoque vs State Of Assam on 10 May, 2016
Author: A.K. Goswami
Bench: A.K. Goswami, Indira Shah
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl. Appeal No.215 of 2011
MD. MOINUL HOQUE,
Son of Late Korshan Ali,
Residence of: Village No.1, Jambari,
PS: Boko, District: Kamrup, Assam.
......... Appellant
-- VERSUS --
THE STATE OF ASSAM
......... Respondent
Advocate for the appellant : Ms. B. Bhuyan, Amicus Curiae.
Advocate for the respondent : Mr. K.A. Mazumdar, Additional Public Prosecutor, Assam.
-B E F O R E-
HON'BLE MR. JUSTICE A.K. GOSWAMI
HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH
Date of Hearing & Judgment & Order : 10th May, 2016.
JUDGMENT & ORDER (ORAL)
(A.K. Goswami, J) Heard Ms. B. Bhuyan, learned Amicus Curiae representing the appellant. Also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam.
[2] This appeal is preferred against the judgment and order dated 26.09.2011 passed by the learned Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No.145(K-G)/2009, convicting the accused, Md. Moinul Haque, the appellant herein, under Section 302 IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- (Rupees One Thousand).
Crl. Appeal No.215/2011 Page 1 of 10[3] As the learned counsel appearing for the appellant was persistently not appearing, this Court by order dated 26.04.2016 had appointed Ms. B. Bhuyan, learned counsel as an Amicus Curiae to argue the case on behalf of the appellant and to assist the Court.
[4] An Ejahar was lodged on 30.05.2008 by Md. Samsuddin Ali stating that in the evening of 29.05.2008 at around 6:30 PM, Md. Moinul Haque, taking a lathi in his hand, had gone to the residence of the informant's brother, namely, Md. Safiullah, and assaulted his son Md. Iyazul Ali and his wife Mustt. Rezina Bibi and after causing injuries, he came back. The aforesaid incident was informed by the informant's mother, Mustt. Aderi Bibi, to the village Gaonburha . At around 7:30 PM, informant's brother, Md. Safiullah, while returning from Jambari Daily Market met his mother on the way and while they were coming together and had reached the gateway of Syed Tamiz Ali, a co-villager, the accused person came from behind and assaulted Safiullah and pierced the lower abdomen of his brother, which resulted in his death at the spot. The informant's mother having also tried to resist the assault, the accused person also injured her by dagger. The accused person went to the house of Md. Azam Ali and Azam Ali had, in his motor cycle, taken the accused to some place. On the basis of the said Ejahar, Boko Police Station Case No.150/2008 under Sections 302/325 IPC was registered.
[5] Police started investigation and on completion of the same, submitted charge- sheet against the appellant under Sections 302/323 IPC. The offence being exclusively triable by the Court of Sessions, the learned CJM, Kamrup, Guwahati, committed the case to the Court of Sessions and accordingly, Sessions case No.145(K-G)/2009 was registered in the Court of the learned Additional Sessions Judge, Kamrup, Guwahati, to which Court, the case was transferred for disposal.
[6] During trial, prosecution examined 12(twelve) witnesses. Defence adduced no evidence. Statement of the accused was recorded under Section 313 Cr.PC. The plea of the accused was that of denial.
[7] PW-1, Mustt. Aderi Bibi and PW-4, Monowar Hussain claimed to be the eye witnesses. PW-9, Syed Tamiz Rahman and PW-10 Md. Iyazul Ali, who is the son of the deceased, claimed to have seen the accused running away from the place of occurrence along with another. PW-11 is the Doctor, who conducted the post-mortem examination and PW-12 is the Investigating Officer.
Crl. Appeal No.215/2011 Page 2 of 10[8] PW-1 in her evidence had stated that the deceased was her son and that the accused Moinul Haque @ Kala was her husband's elder brother's son. She stated that one day in the previous year during the month of May/June (Jeth - an Assamese month), an incident had taken place after Namaz of Magrib (sunset prayer). On that day, in the evening, Kala had assaulted Iyazul, who is the son of the deceased, with bamboo lathi in the courtyard of the deceased. Iyazul had come to her and on being asked, Iyazul was initially unable to say anything because of his crying but later on he said that Kala had assaulted him. She had accordingly taken Iyazul to the residence of the Gaonburha , whose name is Ajit Ali (PW-2). The deceased having come to know about the said incident, he also came to the residence of Ajit Ali (PW-2) and later on, all of them started together towards their own house. After crossing the houses of about 3/4 persons, they saw Kala running towards them and he blocked their path. Then he gave a blow on the deceased by dagger whereupon she tried to resist Kala. Kala pushed her, as a result of which, she fell down; getting up again she tried to resist Kala but without any avail and in the process, she suffered injuries in her hand. Thereafter, Kala pierced the stomach of the deceased below the naval by a dagger and the intestine came out. She tried to put pressure on the stomach of the deceased and in the meantime, someone came and had put a bandage and then she lost her consciousness. She stated that along with Kala, Monowar (PW-4) had also come and Safiullah succumbed to his injuries at the spot.
[9] PW-2, Ajit Ali, is the Gaonburha , who stated that the deceased Safiullah was a truck driver. He deposed that one day after Namaz of Magrib while he was sitting at home, mother of Safiullah (PW-1) had come with her grandchild holding him by her hand and told him that Kala had assaulted her grandchild. On being asked as to why he was assaulted, he was told that someone had killed a snake and had put the same in Kala's trench and Kala suspected that it was done by Iyazul and, therefore, he was assaulted. He stated that he would hold Bichar on the next day. At that time, her grandson said that he would go to a shop and thus, left and before he returned back, Safiullah reached his place. On being asked why she had come, PW-1 narrated the incident. On this, Safiullah stated that they (the accused) had been committing a lot of atrocities and time had come to pick up a quarrel with them. PW-2 stated that he asked him not to do anything of this kind. On his saying so, Safiullah went back along with his mother and he started doing some bamboo work in his courtyard. After sometime, Sirajuddin came and told him that Kala had murdered Safiullah and immediately he came towards the residence of Safiullah where the Crl. Appeal No.215/2011 Page 3 of 10 dead body was kept in an open room. He informed Boko Police Station and then police came. On being asked, mother of Safiullah (PW-1) stated that Kala had killed him. PW-2 is also witness to the inquest report (Exhibit-1).
[10] PW-3 Samsuddin is the elder brother of the deceased and the informant. He deposed that on his way back home, some persons informed that a disaster had taken place in his home and accordingly, he came home in a haste and found the dead body of his brother on the courtyard. Many people had assembled by then along with police. He was informed that Moinul Ali @ Kala had killed his brother. He was a witness to the inquest report (Exhibit-1) and he proved the Ejahar as Exhibit-2.
[11] PW-4 deposed that accused Moinul Haque is also known as Kala. In his evidence, he had stated that at about 7:00 PM on 29.05.2008, while he was returning back home from the market, the accused met him near about the house of the Gaonburha and then they started walking together. On their way, they came across Safiullah and his mother Aderi Bibi (PW-1) under a "Kendu" tree and there was an altercation between Moinul Haque and Safiullah and thereafter, Moinul Haque badly assaulted Safiullah in his abdomen and other parts of the body and ran away from the place of occurrence. In such assault, Safiullah fell down on the ground and there was bleeding and his intestine had also come out. He felt dizzy and sat down. It is also stated by him that initially he tried to resist Moinul but he did not pay any heed and in the assault, mother of Safiullah had also sustained injury.
[12] PW-5 is the Doctor, who had conducted the post-mortem examination. He deposed that the wearing apparel of the person was stained with blood at many places and "Gamocha" was tied around his lower abdomen. On examination, he found the following injuries:-
"i. One cut injury of size 1.5 cm on the lower part 9 cm above the lower border of T shirt on the left side. Underlying stab wound of size 2.5 x 1 cm abdominal cavity deep, spindle shaped located 6 cm below the umbilicus and 1 cm to the left of it. Intestinal coils protruding out and cut.
ii. Cut of size 1.5 cm on the lateral aspect of right sleeve of the T shirt. Underlying stab injury of size 1.5 cm X 0.5 cm on the right arm medial aspect 17 cm below the shoulder joint 3.5 cm in depth located obliquely and from below to up. iii. Cut of size 3 cm obliquely placed on the left side of the T shirt 21 cm above the lower border on the lateral aspect. Underlying stab wound of size 2 cm x 0.5 cm x abdominal cavity deep located 15 cm below left nipple and 16 cm to the left of nipple. The tract possess from left to right, below upwards piercing the last intercoastal space and ending in the left kidney.Crl. Appeal No.215/2011 Page 4 of 10
Injuries on the wearing garments correspond to those on the body. Death was due to haemorrhage and shock as a result of injuries sustained on the body. All the injuries sustained are ante-mortem caused by moderately heavy, sharp cutting, double edged weapon and homicidal in nature."
[13] PW-6, Mustt. Rezina Bibi, is the wife of the deceased. She stated that at around 4:00 PM, the accused had come and shouted at her husband and threatened injuries to him. She prevented her husband from coming out. However, her husband later on went out to do some marketing in Jambari Chowk. Thereafter, her son Iyazul Ali came and told her that he was assaulted by Kala. Protest being made, Kala also wanted to assault her and then a person by the name of Surman came and had defused the situation. After some time, hearing a commotion, she came out whereupon one person by the name of Safiqul Ali informed her that her husband was stabbed to death by Kala near the Masjid. Then she went to her mother in-law's house where the dead body was lying with injuries on head and stomach.
[14] PW-7 is a villager, who stated that hearing some shouts "kill", "kill", he rushed back to his house. At his house, his wife told him that Kala had killed Safiullah. Thereafter, he went where the dead body was kept and he was a witness to the inquest report. This witness was declared hostile.
[15] PW-8 is a reported witness, who stated that he saw some people running towards the old Masjid. He stated that he also informed Boko Police Station about the incident over telephone and thereafter, police had come. He was also a witness to the inquest report.
[16] PW-9 had stated that he was offering prayer at the Namaz and at that time he heard an uproar. After Namaz, he found that the hue and cry was in front of his house and he saw Kala running away after killing Safiullah, who was lying on the ground with injuries on his abdomen and blood oozing out. He stated that the villagers put him in a vehicle and took him to a hospital for treatment.
[17] PW-10 (Iyazul) is the son of the deceased. He stated that the incident took place at about 5:00 PM and at 4:00 PM on the day of occurrence, the accused had intercepted his father and asked why he had removed his bamboo plants and thrown dead snake into his orchard. He having asked the accused as to why he had intercepted his father, he was beaten up by Kala with a bamboo stick whereupon he went to his grandmother's house and reported the matter to her, who then took him to the house of the Gaonburha (PW-2). The Crl. Appeal No.215/2011 Page 5 of 10 grandmother reported the matter to the Gaonburha and then he went back from the Gaonburha's house to meet his father. At that time, his grandmother was sitting in the house of the Gaonburha. On the way, he having met his father reported the matter and his father came home and sent him to the house of his elder uncle but not finding him, he started to return back to his own house. Hearing that some incident had taken place, he came running and on the way reached the place of occurrence where he saw Kala running away after causing hurt to his father. He saw accused stabbing his father and saw him fleeing away but could not see what kind of weapon he had used. His father sustained injury in the abdomen and Akbar Ali and others had taken him in a vehicle to the hospital but brought him back dead.
[18] PW-11 is a Doctor, who had examined Mustt. Aderi Bibi (PW-1), Mustt. Rezina Bibi (PW-6) and Iyazul Haque (Iyazul Ali) (PW-10) on 13.05.2008 and had found injuries on all of them.
[19] PW-12 is the Investigating Officer, who deposed with regard to the steps taken by him during investigation. He also deposed that on 31.05.2008, Md. Moinul Haque @ Kala surrendered at about 2:30 PM.
[20] Ms. Bhuyan, learned Amicus Curiae has submitted that there are discrepancies in the depositions of PW-1 and PW-10. While PW-1 had stated that she had come out from the residence of the Gaonburha (PW-2) along with PW-10 and the deceased, PW-10 gave a completely different version in the sense that he stated that he left his grandmother behind and he had proceeded to some other place and on his way, he met his father. Therefore, according to her, it is doubtful whether PW-1 had actually accompanied the deceased. It is also submitted that while PW-4 stated that the accused met him on the way and that they had come together, PW-12, in his cross-examination had stated that PW-4 never stated before him that he was coming along with the accused but was coming with the deceased and, thus, there is a fundamental flaw in the evidence of PW-4 and, therefore, his evidence ought not to have believed. She also submits that PW-4 referred to an altercation and, so, there may be some provocation on the part of the deceased and, therefore, it cannot be ruled out that the incident had occurred due to grave and sudden provocation. It is further submitted that having regard to the evidence of PW-9 and PW-10, it is doubtful whether they had really witnessed the occurrence or had reached immediately after the occurrence and there is definitely embellishment in their evidence. It is submitted that it was dark and Crl. Appeal No.215/2011 Page 6 of 10 PW-1 in her cross-examination has stated that she could see well in day time and, therefore, the identification of the accused is also doubtful. It is submitted that even otherwise, intention to cause death of the accused is not there and this aspect of the matter was not considered by the learned trial Court and, therefore, she makes an alternative submission that the conviction can be altered to one under Section 304 Part-II IPC. In support of her contention, she has relied upon a judgment of the Apex Court in M avila Tham ban Nam biar -Vs- State of K erala , reported in AI R 1997 SC 687 .
[21] Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam, supporting the judgment passed by the learned trial Court, has submitted that in view of the categorical evidence of PW-1 and PW-4, supported by the evidence of PW-9 and PW-10, and the medical report clinchingly established the guilt of the accused beyond reasonable doubt and, therefore, no case for interference is made out and hence, the appeal deserves to be dismissed.
[22] We have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record.
[23] From the evidence of PW-1, PW-2, PW-6as well as the evidence of PW-10, it appears that on the date of the occurrence, somewhat prior in point of time, PW-10 was assaulted by the accused, which prompted PW-1 to take PW-10 to the house of the village Gaonburha (PW-2). PW-1 had stated that deceased, herself and PW-10 had come out together from the house of PW-2. She had also stated that PW-4 was present with the accused Kala and when Kala made the assault, he ran away. PW-2, the village headman, had stated that PW-10 had gone out from his house before the deceased had come to his house and the deceased and his mother (PW-1) had gone out together. PW-2 is a totally disinterested witness. PW-10, at the time of deposition, was 16 years. He had also stated that he had come out of the house of the Gaonburha while his grandmother was still there. PW-1 was aged about 80 years on the date of the deposition and, therefore, we do not think it appropriate to give too much emphasis on her statement that PW-10 had also accompanied them. She had given a vivid description of the occurrence. The defence had not been able to shake her evidence. There was not even a suggestion that she was not present along with the deceased at the time when the assault had taken place and, therefore, the presence of PW-1 at the place of occurrence along with the deceased is more or less an accepted position.
Crl. Appeal No.215/2011 Page 7 of 10[24] The argument of Ms. Bhuyan that PW-1 could not have identified the accused because of her lack of eye sight also does not commend acceptance. In her cross- examination, PW-1 had stated that she could see better during day time. That does not mean that in the evening she cannot see at all. It was a moon-lit night and according to PW-1, there were lights in every household and because of the glow of light people could be identified. The question of identification may have arisen in a case where a person is a total stranger but the accused is the son of her husband's elder brother and a very close relation and therefore, the plea that there could not have been any identification of the accused cannot be accepted by us. In her evidence, PW-1 had, as noted earlier, stated that Monowar (PW-4) had come along with Kala. In her cross-examination she had reiterated the aforesaid statement and that after the accused made the assault, he had run away. There was no suggestion to her that Monowar was not with Kala. PW-4, in his evidence, had stated that on the way he was met by the accused and they were coming together. In cross-examination, in the first part, he had stated that he was coming along with Moinul. PW-12 had, however, stated that PW-4 had stated that he was coming along with the deceased Safiullah from Jambari Bazar. PW-6 had stated that the deceased had gone to Jambari Bazar and it is possible that when the deceased was returning from Jambari Bazar, PW-4 was also with him. At the time of incident, PW-4's specific assertion was that he was with the accused. In the above fact situation, we do not find any contradiction and both the statements of PW-4 can be reconciled. That he was present at the time when the occurrence had taken place had not been impeached. Ocular evidence given by PW-4 with regard to the injuries sustained by the deceased is corroborated by medical evidence.
[25] From the evidence of PW-6 and PW-7, it appears that they had immediately come to the place where the dead body was kept and had come to learn that the deceased was done to death by Kala. Their evidence does not contribute much to the prosecution case except suggesting that news of Kala committing the crime had spread.
[26] Exhibit-8, Sketch Map, shows that the place of occurrence is in the front of the residence of Tamiz Rahman (PW-9). During the time when he was offering Namaz, he was hearing some hue and cry and after he had finished offering Namaz, he realized that an incident had taken place in front of his house and he saw the accused running away. PW-10 had, amongst others, deposed that from the house of the Gaonburha (PW-2), while he was returning, he met his father and on the bidding of his father he had gone to his Crl. Appeal No.215/2011 Page 8 of 10 uncle's place but not finding him, he was returning back home and on the way, hearing that some incident had taken place he rushed to the place. He had stated that the accused gave a piercing blow to his father and ran away. The argument of Ms. Bhuyan that their evidence that they had witnessed the accused running away from the place of occurrence, in the circumstances of the case, cannot be believed, does not merit acceptance. There was some altercation as deposed by PW-4 and therefore, before the actual event of stabbing occurred, it is preceded by some sort of altercation and, therefore, it is quite possible for PW-9 to come out and see the accused running away after the gruesome assault he made upon the deceased. Similarly, evidence of PW-10 to the extent of his coming to the house of PW-2, his going out leaving his grandmother in the house of PW-2 is corroborated. PW-10 met his father on the way and thereafter, both went their own ways: PW-10 went to the house of his uncle and the deceased came to the house of PW-2 and PW-2 had acknowledged that the deceased had come to his place and the deceased and his mother, PW-1, had gone out together. Even without corroborative evidence of PW- 9 and PW-10, we find that there are two eye witnesses to the occurrence in the form of PW-1 and PW-4, whose evidence is convincing and reliable.
[27] The alternative submission of Ms. Bhuyan that the accused had no intention to cause death of the deceased, does not commend for acceptance. The medical evidence discloses that the deceased sustained two numbers of injuries on his abdomen and the intestinal coil protruded out. The severity of the assault caused by a moderately heavy and sharp edged weapon demonstrates in unmistakable term that the accused had the intention to cause the death of the deceased.
[28] Not only that, during the course of the aforesaid assault, he had also caused injuries to PW-1 and prior to that, to PW-6 and PW-10, corroborated by the medical evidence of PW-11.
[29] The weapon of offence, no doubt, was not recovered during the investigation. Merely because the weapon of offence was not recovered because of lack of effort on the part of the Investigation Officer, in our considered view, will not derail the prosecution case. The evidence of PW-1 and PW-4 are found to be cogent, reliable and trustworthy with regard to the assault made by the accused with sharp weapon and such evidence had remained unimpeached and, therefore, can be acted upon even without recovery of the weapon of assault.
Crl. Appeal No.215/2011 Page 9 of 10[30] Having regard to the aforesaid facts and circumstances of the case, altercation that had ensued as deposed by PW-4 do not prompt us to take a view that it was the deceased who had caused grave and sudden provocation to the accused resulting in commission of the offence of murder of the deceased.
[31] Reliance placed in M avila Tham ban Nam biar (supra), wherein charge was brought down from Section 302 IPC to Section 304 Part-II IPC, is not attracted in the facts and circumstances of the instant case.
[32] In view of the above discussion, we find no good ground to interfere with the reasons assigned by the learned trial court and we uphold the judgment and order of the learned trial Court. Finding no merit, we dismiss this appeal.
[33] Before parting, we record our appreciation for the assistance rendered by Ms. B. Bhuyan, learned Amicus Curiae. She will be entitled to a fee of Rs.7,500/- (Rupees Seven Thousand Five Hundred), which will be paid by the Assam State Legal Services Authority.
[34] Registry will send back the records.
JUDGE JUDGE
Madhu/M. Sharma
Crl. Appeal No.215/2011 Page 10 of 10