State of Assam vs Goljer Ali and Others

V.D. Gyani, J.—This appeal against acquittal arising out of the judgment dated 25.2.87 passed by the learned Sessions Judge, Dhubri in Sessions Case No. 6(D)/84, thereby acquitting the accuseds-Respondents of charges under Sections 1364/34 IPC and Section 302/34 IPC.

Prosecution case stated In brief is that on 31st August, 1982, around 8.00 PM, the deceased Mohammad Ali was abducted from his field and kept in the house of Moksed Ali. He was assaulted by means of lathi, Fallah etc, in a concerted manner inside the home of Moksed Ali. An FIR, Ext. 4, was lodged at Gauripur Police Outpost by the brother of the deceased, which stated further that the villagers were snot allowed to go near the place of occurrence for rescuing the abducted Mohammed Ali, immediate police help was therefore prayed for. On the basis of this report, a case under Sections 147/447/325 and 364, IPC was registered and taken up under Investigation. Sub-Inspector Akbar Ali, In-charge of the Outpost visited the place rand found Mohammed Ali and some others injured, they were sent to the State Dispensary at Gauripur for treatment, wherefrom Mohammad Ali was later shifted to Civil Hospital at Dhubri where he succumbed to the injuries.

During investigation, as many as, 17 persons were arrested but out of them only 10 were charge-sheeted by the police to stand their trial under Sections 147/447/325/364 IPC. It may also be noted that 3 of the accuseds, namely, Goljer Ali, Makbul Hussain and Mohammed Nowaad, whose names did not figure in the FIR, challenged the trial courts order of framing charges against them before this Court and prayed for quashing the charges under Sections 364/34 IPC. The trial court charged and tried them for offences punishable under Sections 364/34 IPC and Sections 302/34 IPC. The trial court found them not guilty of the charges and acquitted all of them.

Defence stand taken by the accused-Respondents was one of plain denial was suggested that there was a long standing rivalry between the two groups and litigation over the land between them and the deceased Mohammed Ali was the victim, no one knew who caused the injuries on his person. The accused denied living made any assault on him. Their defence was that they had been falsely implicated in the case.

In order to prove the charges, the prosecution examined as many as to witnesses including the P.W. 1, Dr. Junalai Chakraborty, who had examined Rahima Bibi, Rafiqul Islam and the deceased at Gauripur Dispensary on 31.8.82 P.W.-2, Dr. A.B. Syed Ahmed, who performed Autopsy. P.W.-3 Md. Salimuddin Seikh, P.W.-4 Rahima Bibi, P.W.-6 Md. Azizur Rahman, P.W.-7 Md. Babur Ali had been examined as eye witnesses of the occurrence. The remaining three are police personnel connected with the Investigation of the case, It is significant to note that Sub- Inspector Akbar All, who virtual completed the investigation did not enter the witness box. It was Atowar Rahman Akanda, who wrote the FIR examined as a Court witness.

Learned Public Prosecutor appearing for the Appellant State raised the following points:

(i) that the eye witnesses account has been wrongly rejected on wholly untenable grounds by the learned trial Judge;

(ii) that the non-examination of the Investigating Officer, by itself would not trust such a doubt on the verasity of the prosecution case as to throw it overbeat;

(iii) that the conduct of the accused who absconded has not been considered in its proper perspective and the prosecution evidence has been totally misappreciated.

Learned Public Prosecutor invited our attention to the glaring errors as reflected in the impugned judgment. Referring to in para 11, she pointed out that while rightly observing that the evidence of close relatives and interested witnesses requires a closer scrutiny, the learned Judge proceeded to hold-"...When it transpires that along with the interested and related witnesses some dis-interested and impartial persons also witnessed an occurrence, they should also be examined; in order to sec how far they corroborate the testimony of the interested and related witnesses." In para 24 the learned Judge further held from the statements of the five witnesses, it will appear that they are in chorus in narrating the roles of the seven accused persons in perpetrating the brutal injuries to the deceased. They claim the injuries were inflicted in their presence. When cross examined by the defence nothing significant could be brought out to destroy the evidence given by these witnesses in examination-in-chief. The learned trial Judge proceeded to hold "They are highly interested in prosecution and apparently inimical to the accused. Hence, their testimony must be approached with great care and caution and should not be acted upon unless it is corroborated by independent evidence. As has been just noted above, at one stage the learned trial Judge observed that these witnesses narrated the incident in chorus and nothing could be brought out in cross-examination the same paragraph, just few lines ahead, the learned Judge has noted glaring discrepancies between the statement of the eye witnesses and the findings of the medical witnesses. Mr. Manama, learned Counsel appearing for the accuseds- Respondents, while not agreeing with some of the findings recorded by the trial Judge, still, however, urged that considering proved nature of injuries of the accused persons, acquitted by the learned trial court, they cannot be held to be guilty, not can any one of them be held to have committed the offence punishable u/s 302 IPC. The learned Counsel appearing for the accuseds - Respondents, it must be said to his credit, has taken a fair stand. Even the learned Counsel was rather hesitant in supporting some of the findings/observations made by the learned trial Judge.

So far as a cautious approach in the scrutiny of the evidence of the related witnesses is concerned, there can be no quarrel to say that the same cannot be acted upon unless corroborated by independent witnesses, can not be accepted as a correct proposition of law. The glaring discrepancies found in the evidence of the eye witnesses, is in relation to the medical evidence in the findings recorded by the medical witnesses, and the learned trial Judge ultimately concludes''"...when there is contradictions between the medical testimony and the evidence of alleged eye witnesses, medical testimony is to be preferred." (See para 24). It would thus be seen how self-contradictory and incongruent are the findings and the observations of the learned trial Judge and how a certain propositions as regards appreciation of evidence, as noted by him, run counter to the principles laid down by the Supreme Court in catena of cases.

We are fully conscious of the scope of interference of this Court in an appeal against acquittal. On mere possibility of taking a different view of the evidence available on record would not afford justifiable for interference. But as noted above, the perversity of reasoning, resulting in and the manifest errors, committed by the learned trial Judge make it a case for interference. There can be no precedent, nor a rule of universal application governing the appreciation of evidence but certain sound principles can well be followed.

In case of incompatibility between the eye witness account and the medical opinion, the learned Judge without making any attempt in arriving at the truth of the matter has outright discarded the eye witnesses account, ignoring the fact that (even some of the witnesses had sustained injuries as testified by P,W.-1, Dr. Junalai Chakraborty, who examined P.W.-5 Rahima Bibi and found abbrasion on her person paused by blunt weapon on the parital region. She was an injured witness, which goes to establish her presence at the scene of occurrence but she has been disbelieved by the trial Judge, merely because her evidence has been discarded if because it does not tally with the medical version. He had also examined Moham-mad Ali, the deceased and found him profusely bleeding from both the legs, he II referred the patient to the Civil Hospital after giving him first-aid. P.W.-2, Dr. Syed Ahmed, who performed Autopsy found the following injuries :

Deep punctured wounds 2" x1" x2" in 4 places below the knee joints of the; left leg. Dr. Chakraborty, who referred hint to the Civil Hospital has also testified that the injury was very serious and could have been caused by an axe, he dared not open the same. Now adverting to the evidence of Rahima Bibi, who saw her husband entering Moksed''s outhouse on being called by accused Majibur, followed him with her baby in her arms and this is what she saw-"...No sooner had my husband entered the gateway than Mokshed pushed and felled him; and accd. Hakim, Syed Ali, Moksed Ali, Janoddin, Fajal Ali, Abdul Latif, Majibar and others held him and took him to the iner courtyard and started assaulting him.

Syed Ali assaulted with rod, Fajar with lathi, Janoddin with "uralmari" and Hakim Ali with axe. When I say, I raised a hue and cry and went in a run to save my husband. Then Fajar dealt strokes on my back. One stroke fell on the body of the baby. Fajar held me and expelled.

Upon hearing my scream, my mother-in-law, father-in-law, husband''s younger brother and others say the occurrence. Salimuddin, Mani Gedu and others also say the occurrence. Even the trial Judge has found it as a fact that nothing material has been brought out in the cross examination of the prosecution witnesses. P.W.-3, Salimuddin, who was uprooting paddy seedlings for transplantation, on hearing a bulla, he saw that the accuseds were assaulting Mohammed Ali in the leg with axe and lathi. Accused Hakim Ali was having an axe; Moksed with ''Uralmari''; Fajar Ali and Jonaddin with lathis and Syed Ali was armed with iron rod. P.M.-4 is the mother of the deceased. On hearing hulla, she also rushed towards Moksed''s house and saw the accuseds beating her son. She has corroborated by P.W.-5 Rahima Bibi who has stated that her mother-in-law, father-in-law and husband''s younger brother also came to the spot. She has described the weapons used by the accuseds and named Hakim, Moksed Ali, Jonaddin, Syed Ali, Fajar Ali, Abdul Latif and Majibur as those assaulting. She has also testified to the effect that her. husband Babur Ali and daughter-in-law (Rahima Bibi) and Abdul Ali had represented at the time of the occurrence. It was accused Hakim, who brought a rod and placed it under; the leg of the deceased and cut it with an axe. Although, an old woman of 60 she even intervened to save her son but she was held and pushed aside. She has also deposed that Rahima putting her son aside went to save Mohammed Ali. On being asked in cross-examination that which particular weapon was wielded by the accuseds, she could not specify the same. It would be too much to expect of a witness an old woman of 60, whose son was being brutally assaulted by the accuseds to specify the weapons and to particularise the accused as to who wielded a particular weapon. It is not a case, where the witness makes a glaring departure that in place of lathi or Uralmari, she comes out with a story of fire arms being used, she named the accuseds and also described the weapons. The only Infirmity, if it can be so termed is her inability to particularize or specify the weapon in relation to each of the accuseds.

The learned trial Judge was palpably wrong in holding that the eye witness account is incompatible with the findings of the medical witnesses. The injuries are found on the leg and the vital injuries are found to have been caused on the leg and that is what the witnesses have also Described in their evidence, where is the incompatibility or inconsistency? Even if the medical evidence is microscopically viewed, an eye witness is not expected to describe the injuries in medical terms nor it is expected on an eye witness to reproduce the incident in a Video-cassetted manner. If there is any inconsistency, it is In the opinion of the Doctor P.W.-2, who in his examination-in-chief stated: "With the axe material ext, 1, the injuries mentioned in my report was not likely to have been caused," - And in cross (lamination deposed- All the 4 injuries on both legs might be caused by a simple blow with a sharp weapon with the axe material ext. 1, all these 4 injuries were not at all likely, "After all, it is an opinion evidence and the eye witness account cannot the discarded on this ground. The learned trial Judge has misquoted the opinion of the P.W.-2 as". He has specifically stated that with the Axe, M.Ex. 1, the injuries mentioned in his report was not likely to have been caused." What the witness has stated is "All the 4 injuries on both legs might be caused by a simple blow with a sharp weapon with the axe material ext. 1, all these 4 injuries were not at all likely. "To say the least, the learned Judge has taken a very distorted views of the injuries; as found by P.W.-2.

It was argued by the learned Counsel appearing for the accused that none the injuries found on the vital pan of the body. The other ground as noted by the learned trial Judge is about non-examination of the independent witnesses, particular, Mani and Gedar who also watched the occurrence along with Salimuddin. While Salimuddin has been examined by the prosecution, the other two has not been examined. Once again adverting to the evidence of P.W.-4, Fula Bibi, it may be noted that P.W,-4 Fulla Bibi had been a suggestion in her cross-examination about Gedar and in answer thereto she stated- "I do not know about our having any dispute over landed property with Hakim''s family. My husband had been imprisoned for having assaulted Gedu, Imprisonment was for murdering Gedu. I do not know for what the assault took place." In such a situation, how could Gedar ''examined as a witness, P.W.-5, of course, has referred the presence of Mani. Assuming that he was present, but the mere fact that he has not been examined as witness, would not result in disbelieving the witnesses, who have not examined ''the prosecution. It is significant to note that no suggestion has been made to any her witness about his presence, nor his name is to be found as a witness in the FIR, Ext. 4. Dealing with the offence punishable u/s 364 IPC, the learned trial Judge referring to the evidence of Rahima Bibi, P.W-5 and Azizur Rahman, P.W.-6 has noted that they are the only two witnesses on the point and further found"...It also appears from their testimony that no force was used by the accused while abducting Mohammad Ali. It is alleged that Mohammad Ali was induced by deceitful means to go to the house of accused Moksed." Now user of force is not an essential ingredients of offence punishable u/s 364 IPC, Abduction, as defined u/s 362 IPC contemplates both user of force or inducement by deceitful means. Under the pretext of offering a puff of Bidi, the deceased was induced to go to the house of accused Moksed Ali and the witnesses are consistent and corroborative of each other, The learned Judge having noted that all the witnesses have deposed to the effect that in the court-yard of Moksed, the 7 accuseds had been beating Mohammed Ali, as if they have hatched out a conspiracy to do away with Mohammed Ali with certain ulterior object. "But barring Babur Ali, no witness has attributed any motive for the alleged acts of the accused persons." Where the eye witnesses examined deposed to the act committed by the accused, motive loses much pf its significance as in the present case. It is also not necessary that other witnesses examined by the prosecution, must refer to the motive for committing the crime. The very approach of the learned Judge is erroneous. As there have been serious lapses on the part of the Investigating Officer having recorded the dying declaration, Sub-Inspector Akbar Ali, failed to turn up as a witness, and the prosecution obliges to dose its case. As against only 7 accuseds, named in the FIR, Ext. 4, he arrested 17 accuseds and yet did not enter the witness box to justify his conduct in arresting such a large number of persons. As noted by the learned trial Judge, his superior officers relieved him of the duty of investigating the case any further. As rightly noted by the trial court, the investigation conducted by him, was not at all fair, efficient and thorough. What would be its effect on the prosecution case? The lapses and laches on the part of Investigating Officer would not necessarily result in discarding the prosecution case, otherwise well supported by the testimony of eye witnesses, as has been erroneously the by the trial court.

In view of the foregoing discussion, the acquittal as recorded by the trial f court cannot be allowed to stand, it is liable to be quashed and accordingly quashed.

The next question that immediately crops up, who are the accused persons who can be found to be guilty and for what offence? This would necessarily take up to the evidence. In the FIR, Ext. 4, the following persons have been specifically named-(1) Abdul Hakim, (2) Moksad Ali, (3) Janaddi Seikh, (4) Fajur Ali, (5) Majbar (6) Sayed Ali and (7) Abdul Latif. There is no undue delay in lodging the FIR, nor is there anything, except for a bulk suggestion in the testimony of the informant, P.W.-7 Babur Ali, to show that he falsely implicated the seven accuseds, named therein. To recapitulate the evidence of other eye witnesses, P.W. -3 Salimmuddin has named Sayed Ali Seikh, Hakim, Jannadi, Majbar, Abdul Latif, Fazar Ali and Moksad Ali. P.W-4 Fula Bibi, P.W.-5 Rahima Bibi and P.W.-6 Azizur Rahman have not only named all the 7 accuseds but also deposed to their actual participation in the asssault. P.W.-7, who was ploughing in the paddy field was Informed of the incident by his nephew Ajijur Rahman. P.W.-6 also was informed by Ajijur Rahman that the accuseds were assaulting his son. He rushed to the place of occurrence and found his son being assaulted with lathis and rods. He has further proved the oral dying declaration made by the injured Mohammed Ali, while being lifted by the police, who named Jainuddin, Syed Ali, Moksed Ali, Latif as the assailants. There is nothing in cross examination of these witnesses so as to detract them or disbelieve them so far as the role of these seven accuseds is concerned. As for P.W.-3.as pointed out by the leaned counsel for the accuseds-Respondents, of course, he has not named Majibar, who initially called Mohammad Ali, offering him Bidi, it may be that he could not have seen either his calling or the subsequent role or is subsequent participation. Abdul Latif has also not been specifically named by P.W.-3. The other witnesses have categorically stated about his role in the commission of the crime. As the deceased was induced to go to the house of Moksed Ali, the prosecution has fully proved the case as against the following accuseds(1) Abdul Hakim, (2) Moksed Ali, (3) Jannadi Seikh, (4) Fajur Ali, (5) Majbar, (6) Syed Ali and (7) Abdul Latif. Their acquittal by the trial court, cannot be sustained. They are found to be guilty of offences punishable u/s 364 IPC read with Section 302/34 IPC. The mere fact that the injuries were inflicted on the lower extremeties, considering the concerted assault, and the resultant injuries, with the weapon used for inflicting the injuries, it can not be a case of any lesser offence than Section 302 IPC. None of the exceptions of Section 300 IPC is attracted to the facts of the present case. The accuseds are found to be guilty of offence punishable u/s 302 IPC. So far as the offence punishable under Sections 364/34 IPC is concerned, they are sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 1,000/- each, in default of payment of fine, shall suffer further imprisonment of one year. For offences punishable under Sections 302/34 IPC, the above named accuseds are sentenced to life imprisonment with a fine of Rs. 1,000/- each, in lieu of payment of fine, to suffer one month''s by rigorous imprisonment. The substantive sentences to run concurrently. Acquittal of accuseds, other than (1) Abdul Hakim, (2) Sayed Ali, (3) Abdul Latif, (4) Majibur Rahman, (5) Fazar Ali, (6) Jonati Seikh and (7) Moksed Ali, as recorded by the trial court, is maintained. The accuseds are to surrender before the Chief Judicial Magistrate, Dhubri to serve out the sentences.