Musmt. Ambia Khatoon vs Niamat Ali and Others

D. Biswas, J.—This Revision is directed against the judgment and order dated 26.7.1996 passed in Sessions Case No. 14(N)/94 u/s 302/323/34 IPC by the learned Session Judge, Nagaen acquitting the respondents. Being aggrieved thereby, the wife of the deceased has preferred this Revision u/s 401 of the Code of Criminal Procedure, 1973.

I have heard Mr. S. Medhi, the learned senior counsel for the revision petitioner and Mrs. K. Deka, the learned PP, Assam.

The prosecution case is that on 30.9.1992 at about 8.00 AM the deceased Nurul Islam, husband of the petitioner, of Dighaliatigaon was proceeding on his bicycle to the hosue of Akkas Ali on being summoned. When he was near the house of accused Niamat Ali, he was attacked and chased by Niamat Ali, Taheruddin and others. They overpowered him. Nurul Islam tried to run towards the house of Idris and fell down. All the accused persons dragged him to the nearby paddy field and assaulted him with axe, sword, dagger, iron rod, iron axle and long.

Ambia Khatun, PW 1, wife of the deceased and other members of the family were in their courtyard from where they saw that the above-named accused persons launched attack on Nurul Islam. They rushed to the place of occurrence. PW 1, Ambia Khatun and PW 2, Anowara Begum, niece of the deceased, fell on Nurul Islam to save him from further assault. They were removed forcibly by the accused persons. The accused persons further assaulted the deceased. PW 1 and PW 2 were also assaulted. At that time Md. Tarani, Riajuddin and Hazarat Ali came to the place of occurrence and shifted Nurul Islam to a nearby culvert. At that time accused Niamat alerted other accused persons that Nurul Islam was still alive. There upon the accused person gave him further blows with weapons. On arrival of co-villagers, the accused persons moved away. Nurul Islam was brought to the courtyard of his house where he named the accused person as his assailants. He was shifted to hospital where he also named all the accused persons as his assailants. On the following morning i.e., on 1.10.1992 Nurul Islam succumbed to the injuries.

The learned Session Judge, Nagaon recorded acquittal primarily on the ground that the injuries found by PW 8; Dr. K.P. Goswami do not corroborate the prosecution evidence. The reason given by the learned Session Judge Is that the above contradiction renders the evidence of PW 1 and 2 as not wholly reliable. PW 1 is the wife of the deceased and PW 2 is the niece. Both of them are closely related. The area is wide open and they saw the occurrence from their courtyard. They rushed to the place of occurrence to protect Nurul Islam. It is not discernible on record that they have any deep-seated enmity with the accused persons for which they would falsely implicate them.

The doctor, PW 8 who had held the post mortem examination found the following injuries :

"(i) One lacerated injury over the right check size -- 2" x 1/2" x 1/2".

(ii) One lacerated injury over the right arm. Size - 2" x 1/2" x 1/2"..

(iii) Fracture of middle thai of the tibula.

(iv) Fracture of neck of the right femur,

(v) Lacerated Injury over the left arm.

(vi) Fracture if left humours,

(vii) Haematoma over the right shoulder joint."

The doctor deposed that the injuries being lacerated and fractured could not have been caused by the sharp edge of a dao or sword. . Because of this statement, the learned Session Judge came to the conclusion that PW 1 and 2 could not be wholly relied upon. But, PW 1 in her evidence stated that the accused Niamat Ali assaulted her husband with an axe. She also told that her husband was assaulted by a dagger and axle. PW 2 also told that they assaulted Nurul Islam with exe, sword, dagger, iron rod, iron axle and jong. Axe and rod are weapons capable of causing fracture Injury. A dao, if projected from reverse, is also capable of causing fracture and lacerated injury. Similarly, an axle is capable of causing lacerated and fracture injury. Therefore, the learned Session Judge was obviously wrong when he held that the evidence of eye witnesses was not supported by the medical evidence. A man was killed in presence of his wife and niece. There cannot be any reason for them to shield the real culprit and falsely implicate the accused persons. A case has to be decided in the facts and circumstances peculiar to it. The occurrence took place in the morning near the house of the deceased and Niyamat Ali. It was quite likely that the inmates of the house would see the occurrence. Niyamat shouted "Son of the bitch has come, catch hold of him". PW 1 and 2 came out and saw the occurrence. It still remains a matter of guess as to why the evidence of PW 1 and 2 have been discarded by the learned Session Judge. There is apparently no conflict between the evidence of the eye witnesses and the injury reports. Furthermore, it can be a rule of law that a verdict of guilt can be recorded when only the evidence of eye witnesses stand corroborated by medical evidence. There may be contradictions. When the evidence of eye witnesses is reliable and the credibility of the witnesses remains unimpeached, in such a case, depending upon the fact and circumstances of that particular case verdict of guilt may be recorded. The learned Session Judge further held that other eye witnesses were not examined. This omission to examine the villagers who had witnessed the occurrence cannot be taken as fatal to the prosecution case. Independent and disinterested witnesses are now-a-days reluctant to stand as witness for various reasons. They might have won over, or for security reasons they may be reluctant to come forward to depose. This omission on the part of the prosecution cannot, therefore, be an important factor in a case where reliable evidence is available.

The learned Session Judge has not given due consideration to the evidence of PW 3, Keramat Ali, the father of the deceased to whom the deceased narrated the incident and named the accused person. The evidence of PW 4, Arun Bordoloi, a completely disinterested witness from a different community who saw the injuries on the person or Nurul Islam and also heard Nurul naming the accused persons as his assailants. It was, therefore, obviously an error on the part of the learned Session Judge to reject the prosecution version. Before conclusion, it may be stated that the Hon''ble Supreme Court has long back settled the law. In Husaina Vs. The State of U.P., the Supreme Court held that if the witnesses are believed, the so-called inconsistency in the opinion of the doctors looses much of its force.

The discussion above shows that there is no option but to set aside the order of acquittal in exercise of power u/s 401 of the Code of Criminal Procedure and to remand the matter back to the learned Session Judge for disposal afresh after hearing the arguments of the learned counsel for the accused persons and the learned PP, Assam. Accordinglly, the Revision is allowed. The judgment andorder dated 26.7.1996 impugned in this revision is hereby set aside and the case is remanded back for disposal afresh.

The Registry is directed to send a copy of the judgment with the CLR forthwith to the learned Session Judge, Nagaon.