Md Samed Ali vs State Of Assam And 5 Ors

A.M. Bujor Barua, J

Heard Mr. S. Rahman, learned counsel for the appellant. Also heard Mr. B. Sinha, learned counsel for the respondents No. 2 to 6 as well as Ms. S. Jahan, learned Additional Public Prosecutor for the State.

This is an appeal against the judgment and order 08.04.2015 of the learned Additional Sessions Judge, (FTC) Dhubri in Sessions Case No.231/2014, whereby the accused appellant were acquitted of the charges framed under Section 302 IPC.

An ejahar dated 09.08.2012 was lodged before the Officer-in-Charge of Gauripur Police Station by Samed Ali inter alia stating that at around 7 pm on 09.08.2012 his younger brother Abed Ali along with one Nabizur Rahman had proceeded from their home to the Charaldanga Boubazar. On the way, the accused No.1 Zehirul Haque had asked his brother to stop saying that they have something to talk about and when his brother and Nabizur stopped on the road, the other accused persons who were lying in wait, held a discussion with the accused No.2, whereupon, the accused No.2 who was armed with lathi struck his brother with it. Immediately thereafter the other accused persons came and surrounded his brother from all sides and stabbed him near the right side of his waist with dagger.

The informant examined himself as PW-1 and in his deposition stated that the occurrence took place on 09.08.2012 at around 7 pm on the road and at that time he was in his house and on hearing about the incident he went there and saw that his brother Abed Ali was lying on the ground with injuries and on being asked, he said that he was assaulted.

We can take note of the evidence of PW-1 that although the deceased had told him that he was assaulted, but the deceased had not made any attempt to tell PW-1 as to who had assaulted him.

In cross PW-1 admits that he had not seen the occurrence and the occurrence took place at a distance of 250 yards from his house.

PW-2 who according to the informant was accompanying the deceased when he was assaulted in his deposition stated that he heard some conversation taking place between Jahirul and Abed Ali and Abed Ali was assaulted by the accused persons who gave one blow with a dagger.

In cross, the witness stated that the house of Abed Ali is situated about ½ km from his house and the place of occurrence was at a distance of 250 yards from Motiar Kati Beel.

As per the evidence in chief of PW-2 at the relevant time when the occurrence took place , he was fishing at Motiar Kati Beel. In cross, PW-2 stated that there was no electricity on the road when the incident took place.

PW-3 stated that he was in the market near his house when he heard some halla and upon reaching the place of occurrence found that the deceased Abed Ali was lying on the ground near the house of Ajijor Rahman and thereafter he along with others took the deceased to the Dhubri Civil Hospital .

PW-4 is the doctor who conducted the post mortem examination in his deposition had stated that the deceased had a rupture on the right side of liver and also there was a stab wound on left buttock 3 " deep X 2 " long X 2 " breath and all other parts of the body were healthy.

CW-1 Tarun Ch. Das was the Officer-In-Charge of Gauripur Police Station and he had deposed that the ASI Ajit Das had submitted the charge-sheet.

Mr. S. Rahman, learned counsel for the appellant relies upon the evidence of PW-2 to project that PW-2 was an eye witness to the occurrence and therefore, his account of the incident as narrated is to be believed and upon so believing, it has been established that it is the accused person who had assaulted the deceased resulting in the fatal injuries which had caused his death.

We have carefully gone through the evidence of PW-2 and note that PW-2 was fishing in a place called Motiar Kati Beel at around 7 pm in the evening on the given day when the occurrence take place.

We also take note of that in the cross PW-2 stated that the place of occurrence is at a distance 250 yard from the Motiar Kati Beel. In other words that the occurrence took place when PW-2 was at a distance of 250 yards at around 7 pm in the evening when it was dark.

We also take note of that in cross PW-2 stated that there was no electricity in the road when the occurrence took place. Given the situation where the PW-2 was at a distance of 250 yards from the place of occurrence which took place around 7 pm in the evening when it was dark and there was no electricity in the area, it is difficult to believe and accept the evidence of PW-2 that he had seen the occurrence. Firstly, 250 yards is a long distance for hearing any conversation as deposed by PW-2 as well as to see even in a normal day light condition.

Secondly, the evidence that he heard the conversation between the accused and the deceased is also not believable to the extent that it is difficult to accept that a conversation can be heard from a distance of 250 yards.

Considering the above, we are not inclined to accept the contention of the learned counsel for the appellant that it has been established on the basis of the evidence of PW-2 that it is accused appellant who had assaulted the deceased and caused injuries which had resulted in his death.

Apart from the PW-2, no other witnesses have been relied upon to prove the allegation against the accused person on the basis of any other evidence on record. In the resultant situation, we do find any infirmity in the judgment dated 08.04.2015 of the learned Additional Sessions Judge, (FTC) Dhubri in Session Case No.231/2014 by which the accused persons herein were acquitted of the charges framed against them.

The appeal stands dismissed.

Send back the LCR.