Mominur Ali vs State Of Assam And Anr

Ajit Singh, C.J

The appellant Mominur Ali has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of

Rs.10,000/- with default stipulation. The trial court has, however, acquitted co-accused Baser Ali.

The victim of the incident was Nur Hussain, aged about 20 years.

According to the prosecution case, on 25.1.2011 around 11 a.m. the appellant tookalong with him Nur Hussain on his motor cycle bearing No. AS-

17-5906 from Alamganj Market and on the following day, i.e. 26.1.2011 dead body of Nur Hussain was recovered from the bank of river at

Majerchar village. Beldar Ali (PW-2) lodged a police report (ejahar) at Dhubri Police Station alleging that appellant along with some ill-natured

persons had conspired to kill Nur Hussain. Sub-Inspector - Ganesh Chandra Das (PW-11) visited the place of occurrence and he prepared a sketch

map Exhibit-5. He also registered a case of unnatural death. The appellant subsequently surrendered at the Police Station and Sub-Inspector - Utpal

Bhattacharjee (PW-9) arrested Baser Ali, an accomplice of the appellant.

Dr.Mukul Chandra Barman (PW-8) conducted the post mortem examination on thedead body of Nur Hussain. According to him, death was due to

asphyxia as a result of strangulation by ligature. His post mortem examination report is Exhibit-1. After completing the investigation Utpal

Bhattacharjee submitted Exhibit-3 charge-sheet against the appellant and Baser Ali for offences under Sections 120B and 302/34 of the Indian Penal

Code.

During trial, the appellant and Baser Ali abjured their guilt. But the trial court relyingupon the evidence adduced by the prosecution, convicted and

sentenced the appellant as aforesaid and acquitted Baser Ali.

The entire prosecution case is based solely on the theory of last seen and the trialcourt believed the evidence of two witnesses, namely, Mir

Hussain (PW-4) and Meeraj Hoque (PW-5), who deposed in the court that they saw Nur Hussain going in pillion riding with the appellant. But on

careful examination of the case diary it is found that the statement of Mir Hussain made before the police is absent. This fact is admitted even by Sub-

Inspector Utpal Bhattacharjee during his cross-examination. Mir Hussain has deposed that at about 11/12 p.m. on 25.11.2011, while he was having tea

in a tea stall in the daily market, he saw the appellant taking Nur Hussain on his motor cycle in pillion riding. He told everyone that the appellant took

Nur Hussain with him when the later did not return. According to this witness, when they went to the house of the appellant and asked about Nur

Hussain, he expressed complete ignorance. But during his cross-examination, Mir Hussain failed to either give the name of tea owner, where he was

having tea or the name of persons, who were having tea with him. Thus, his evidence is in severe want of corroboration. Besides, he being brother of

Nur Hussain is an interested witness. Also in the absence of his earlier statement before police, it is difficult to rely on his deposition in the court and

there is every likelihood of the same being concocted.Â

Another witness- Meeraj Hoque - who deposed that while he was in a rice mill at about11 a.m. on 25.01.211, he saw the appellant carrying Nur

Hussain on his motorcycle but could not disclose the number of the motorcycle. He has deposed in his cross-examination that he was talking to his

friend named Joon at that time and he did not record the number of the motorcycle. But, before police during investigation he stated that the number of

the motorcycle was AS-17-5906 and even gave a vivid description. This is a material contradiction as it proves that this witness actually did not see

the appellant carrying Nur Hussain and thus shakes the credibility of this witness too. Had he actually seen the appellant carrying Nur Hussain, he

would have made a consistent deposition in the court. Besides, the registration number of the motorcycle of the appellant was a common thing to be

known to all as he was from the same village and as such naming the registration number of the motorcycle does not incriminate the appellant in any

manner. Further, both the aforesaid two witnesses have deposed that they saw the appellant carrying Nur Hussain on his motorcycle at about 11 a.m.,

but the dead body of Nur Hussain was recovered on the next day i.e. after about 24 hours. Therefore, there is no evidence at all to even remotely

suggest that the appellant was last seen with Nur Hussain just before his death at or near the place where body was found.Â

In Roopsena Khatun Vs. State of West Bengal, AIR 2011 SC 2256, where the appellant was seen following a little girl at about 10 a.m., on the

previous day and the dead body of the little girl was found floating in a nearby pond at 2:30 p.m. on the next day, the Supreme Court held that the

circumstance ""last seen"" if at all can be used against the accused as a circumstance should have been connected with the time of death. When the

deceased was seen following the accused at about 10 a.m. on the earlier day whereas the body was found on the next day at about 2.30 p.m., and the

prosecution had also not fixed the time of the death, it was observed that there was no proximity between the time when the deceased and the

accused were last seen together and the time of the death of the deceased. The prosecution could not establish the same. Therefore, even if that

circumstance is viewed as an incriminating evidence, the same had no significance. In the present case too, the prosecution did not ascertain the time

of death of Nur Hussain and the time gap between the appellant being allegedly last seen with him had no proximity with the time of his death.

Therefore, the evidence that the appellant was last seen together with Nur Hussain is of no consequence.

Howalder Ali (PW-1) deposed that in fact the appellant went with the people searchingfor Nur Hussain. Beldar Ali (PW-2) and Sanowar Ali (PW-

3) have deposed that he heard that the appellant had taken Nur Hussain on his motorcycle, but could not say from whom they heard so. Jomadar Ali

(PW-6)-father of Nur Hussain - though deposed that he was told by Mir Hussain that the appellant carried his son, but during his statement before the

police during investigation, he did not state as such. Therefore, his evidence seems to be developed. Wahidur Rahman (PW-7) did not know anything

about the occurrence. We are, therefore, of the considered view that the prosecution has grossly failed to prove the charge against the appellant and

as such, we acquit him of the charge. The impugned conviction and sentence of the appellant are accordingly set aside. The appellant is in jail. He is

directed to be released forthwith.

The appeal is allowed.