Akbar Ali vs State Of Assam And Anr

A.M. Bujor Barua, , J. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. D.A. kayum, learned counsel for the appellant and Mr. M. Phukan, learned Addl. P.P., Assam for the State respondent.

Office note dated 25.05.2016 shows that service upon the respondent No. 2 was complete and the notice had been duly served, but inspite of such service, none appears for the informant/ respondent No. 2.

An ejahar dated 12.02.2008 was lodged by Noor Alom Sarkar before the in-charge of B.N. College Nagar Police Outpost, Dhubri alleging interalia that on the night of 11.02.2008 at about 12.30, when his father Md. Bellal Hussain went to his cultivable land to have a look at the water pump, the persons mentioned therein had dragged his father into their house and there upon the accused persons had cut the right hand of his father into pieces by means of sharp weapon in the house of the accused No. 1 and killed him by stabbing with sharp weapons in various parts of the body.

Accordingly, charge was framed under Section 302/34 of the Indian Penal Code on the ground that on 11.02.2008 at about 12.30 in the night, the accuseds had committed murder of Bellal Hussain intentionally causing death with sharp weapon in furtherance of a common intention.

The informant, Noor Alom Sarkar, who deposed as PW-1 stated that on 12.02.2008 at about 8.00 PM when his father went for watering their cultivation through tube well, he was at home. At about 12.30 at night, his uncle Khairul informed him that his father Bellal was assaulted in the house of the accused Akbar Ali and on receipt of the information, he went to the place of occurrence and upon reaching it, saw that his father was lying dead inside the house of Akbar Ali and his right hand was severed. He further deposed that after inflicting the injury in hand, Akbar and his wife went to Dhermashala, which is given to be understood to be the Police Outpost. The witness further deposed that the rest of the accused persons were at home and ran away after seeing him.

In cross examination, PW-1 stated that he had not mentioned in the ejahar that the other accused persons had fled away from the place of occurrence upon seeing him and further that he had not stated about it before the investigating officer. But the said aspect of the PW-1 having not stated about the other accused persons fleeing away from the place of occurrence after seeing him was not put up before the investigating officer, who had deposed as PW-14.

Although, the statement made by a witness under Section 161 Cr.P.C. can be relied upon only to corroborate the evidence-in-chief and as it cannot be relied to contradict the evidence, the statement of PW-1 in his examination-in-chief that he had seen the other accused person having fled away from the place of occurrence upon seeing him cannot be discarded.

The very aspect that the rest of the accused persons had ran away after seeing PW-1, by itself establishes that apart from the accused appellant, some other persons were also present at the place of occurrence. For the purpose of this appeal, we are of the view that the other evidences being led by the prosecution witnesses may not be relevance for the present.

In the judgment of the learned Sessions Judge, Dhubri dated 23.11.2015, in paragraphs-24 and 25, it has been provided as follows:  "24. Now in the present case, it is evident from the evidence discussed above that Bellal Uddin was found injured with his dismembered forearm at the house of Akbor and Akbor was present at the relevant point of time inside his house armed with a dao.  25. Now as per Sec. 106 of the Evidence Act burden of proving fact especially within knowledge - when any fact is especially within the knowledge of any person, the burden or proving that fact is upon him. This is an exception to the rule u/s 101 of the Evidence Act. Evidently accused Akbor was the only occupant of the room, where the deceased was found with serious injuries on his person and having died immediately thereafter on the way to the hospital. There was no other explanation coming up in the evidence as to the injuries sustained by the deceased, which according to the MO caused his death except that the accused caused those injuries."

From the said provision in the impugned judgment of the learned Sessions Judge, it is discernible that the conviction of the accused appellant was arrived at by relying upon the provision of Section 106 of the Evidence Act, where the burden of proving of a fact especially within knowledge is upon the person, who has the knowledge thereof. We also take a note that the reliance upon Section 106 of the Indian Evidence Act was arrived at by the learned Sessions Judge on the premises that the accused appellant Akbor was seen alongside the deceased, who was at that time in an injured condition in the house of the accused. It being so, by following the decisions of the Hon'ble Supreme Court in respect of Section 106 of the Indian Evidence Act, the learned Sessions Judge arrived at a conclusion that under Section 106, it was for the accused appellant to explain as to how the death had occurred to the deceased, inasmuch as, it was he alone who was seen at the place of occurrence.

Technically the said proposition would be a correct proposition, but for it to be so the evidence on record would have to clearly establish that it was the accused alone, who was found alongside of the deceased in the place of occurrence and there was no possibility of any other person being present over and above the accused person. To examine that aspect as to whether the evidence on record indicates the presence of any other person over and above the accused appellant, we refer to the evidence of the PW-1 as narrated hereinabove, which clearly indicates that the existence of other persons over and above the accused person at the place of occurrence along with the deceased also stood established. As the provision of Section 106 of the Evidence Act can be invoked only in the circumstances, where none other than the accused person was found at the place of occurrence along with the deceased, in the present case, the presence of other persons having been established, we are of the view that the burden to provide an explanation as regards the death of the deceased cannot be shifted to the accused appellant.

In view of the above, we are unable to accept the view taken by the learned Sessions Judge by relying upon Section 106 of the Indian Evidence Act to arrive at the conclusion that involvement of the accused appellant has been proved beyond all reasonable doubt in causing the injuries leading to the death of the deceased. We have gone through the further evidence available on record, but neither any direct evidence nor any circumstantial evidence complete in its chain is available to implicate the accused appellant beyond all reasonable doubt in committing the offence is available.

Accordingly, the judgment dated 23.11.2015 of the learned Sessions Judge, Dhubri in Criminal Appeal No. 64/2010 convicting the accused appellant under Section 302 IPC and sentencing him to rigorous imprisonment for life with fine of Rs. 2000/- in default thereof, to a further simple imprisonment for 6 months is set aside.

The appeal is allowed. The accused appellant be set at liberty forthwith, provided he is not required in any offence.

Send down the LCR.