State Of Assam vs Abdul Kalam And Ors

Ajit Singh, C.J.

This appeal by the State is directed against the judgment dated 25.11.2009 passed by the Additional Sessions Judge (FTC), Karimganj in Sessions

Case No.32/2008, whereby he has acquitted respondent Nos.1 to 6 of the charges under Sections 148, 341 and 302/149 of the Indian Penal Code.

According to the prosecution case, Respondent No.1 is father of Respondent Nos. 3 to6, whereas Respondent No.2 is their close associate. Few

days prior to the date of incident, Respondent No.1 had a quarrel with Suruk Ali over an issue relating to football match. Respondent No.1 even

lodged First Information Report about the incident against Suruk Ali at Nilambazar Police Out-post. But, due to intervention of some villagers,

Respondent No.1 withdrew the report with an understanding that the dispute would be settled in village bichar. Pursuant to this understanding,

Respondent No.1 and Suruk Ali also deposited Rs.5000/- as security with the middle man as per condition of village bichar. But, soon thereafter,

Respondent No.1 withdrew the amount. Village bichar, therefore, could not be held. Thereupon, Respondent No.1 threatened to kill Suruk Ali and

likewise, Suruk Ali threatened to kill Respondent No.1.

After few days i.e. on 18.3.2006, sometime during afternoon, Suruk Ali went toNilambazar to attend the weekly market but he did not return home.

His son - Md. Setab Uddin (PW-1), therefore, along with other relations and villagers made a search for him, but in vain. Md. Setab Uddin then also

informed the police that Suruk Ali was missing. However, on the morning of 19.3.2006, dead body of Suruk Ali with injuries was found lying in a

paddy field by Lalon Mian (PW-6). Faizun Bibi (PW-4), wife of Suruk Ali, lodged the First Information Report (Exhibit-9) on the third day since

recovery of the dead body. In the absence of any eye witness, the police arrested the respondents on suspicion and filed a charge sheet against them

relying upon the following circumstances :-

i) On the night of 18.3.2006, all the respondents were found holding a meeting in the market of Nilambazar;

ii) On 18.3.2006, Suruk Ali did not return home from the market;

iii)On the night of 18.3.2006, the respondents were found in a paddy field near the place of occurrence with weapons in their hands;

iv) Thereafter, all the respondents were found returning village through a path and their clothes were stained with blood;

v) On the night of 18.3.2006, the respondents were later found bathing in their pond and leaving their houses after locking the door;

vi) On the morning of 19.3.2006, dead body of Suruk Ali was found lying in a paddy field.

The trial court, after carefully scanning the evidence of the prosecution witnesses, heldthat none of the circumstances were proved and otherwise

also the circumstances do not connect the respondents with the killing of Suruk Ali. Aggrieved, the State has filed the present appeal.

It is argued on behalf of the State that the trial court has committed an illegality inacquitting the respondents by wrongly appreciating the evidence.

Learned counsel for the respondents, on the other hand, defended the impugned judgment of acquittal.

After hearing the respective counsel for the State and Respondents and havingperused the record, we are also of the view that the prosecution has

grossly failed to prove its case against the respondents.

As mentioned above, respondent No.1 is father of Respondent Nos.3 to 6 and Respondent No.2 is their close associate. Also, on 18.3.2006, there

was a weekly market at Nilambazar. Therefore, the respondents’ holding a meeting in the market is not unnatural. There is even no evidence to

suggest that the meeting was held by the respondents for designing a plan to kill Suruk Ali. Moreover, it is difficult to believe that the respondents

would hatch a plan to kill Suruk Ali by openly holding a meeting in a market place.

Moinul Ahmed (PW-7) has deposed that while he was returning from market on thenight of 18.3.2006, he found Nazib Ali (Respondent No.1),

Monowara Hussain (Respondent No.3 and Ali Hussain (Respondent No. 6) near the place of incident with weapons in their hands. But, he did not

state this fact in his earlier police case diary statement recorded under Section 161 of the Code of Criminal Procedure. Wahab Ali (PW-2) has

testified that while returning home on the night of 18.3.2006, he found some persons near the place of occurrence, but he could not identify them. This

witness did not disclose even this fact in his earlier police case diary statement. The trial court thus has rightly held that the prosecution could not

establish the circumstance that respondents were seen with weapons in their hands near the place of incident on the night of 18.3.2006.

Md. Setab Uddin is son of Suruk Ali. According to his evidence, he along with relationsand other villagers had searched for his missing father Suruk

Ali. He also says that he had even lodged a report of missing at the Police Station. But in the report, there is no mention by him that he saw the

respondents with weapons in their hands and their clothes were stained with blood. In his police case diary statement also recorded on the next day,

i.e. 19.3.2006, he did not mention anything about this circumstance. Not only this, some of the prosecution witnesses (PWs 2 to 7), who had

participated in the search with Md. Setab Uddin have not stated in their evidence that they were informed by him of this circumstance. Therefore, the

evidence of Md. Setab Uddin that he saw the respondents with weapons in their hands and their clothes were stained with blood becomes wholly

unreliable.

The circumstance that the respondents were taking bath in their pond and some ofthem left their house after locking the door does not in any

manner connect them with the killing of Suruk Ali.

For these reasons, we affirm the findings of the trial court and dismiss the appeal.