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GAUHATI HIGH COURT
J.M. Srivastava and S. Barman Roy, JJ.
Md. Alimuddin & others - Appellants/Petitioners
versus
The State of Assam - Respondent
Criminal Appeal No. 75 of 1990
Decided on 4.2.1992
Indian Penal Code - Section 302 - Postmortem report - Opinion - The injury No. 3 being more fatal which alone can cause death. (Para 7)
Indian Penal Code - Section 302 - Whether the prosecution as well as defence versions are to be evaluated in the context of the injuries sustained by both sides? (Yes). It is not the case of the prosecution or of the defence that after the appellant's attack on the deceased and his men was over, a skirmish followed and in that skirmish the appellants and some of their women sustained injuries - Whether the trial court has gone beyond the record (Yes). (Para 12)
Indian Penal Code - Section 302 - F.I.R. lodged about 12.00 hours after the occurrence - Whether this suspicious feature can be overlooked (No) - F.I.R. not lodged promptly F.I.R. though allegedly registered at 9 A.M. on 6.9.1985 was despatched to the Magistrate on 7/9/85, and the Judicial Magistrate received and/or saw the said F.I.R. on 12.9.1985 for the first time - Delay in sending F.I.R. - Whether it can be inferred that the F.I.R. was not at an registered on 6.9.1985 as claimed by the prosecution (Yes) - In all probability the F.I.R. in question was drawn on 12.9.1985 - The scribe of the F.I.R. not examined. (Para 13)
Indian Penal Code - Section 302 – Non-examination of the scribe of the F.I.R. strengthens the suspicion of the court about authenticity of the F.I.R. in question. (Para 13)
Indian Penal Code - Section 302 – Eye-witness - Series of serious contradictions. (Paras 15 & 16)
Indian Penal Code - Section 302 - Dying declaration - Contradictions with eye-witnesses - Whether possibility of the deceased being tutored by his relatives before dying declaration can be ruled out (No). (Para 18)
Indian Penal Code - Section 302 - Defence came up with a distorted version of the actual incident disclosing only half truth and half untruth - Equally the prosecution has also come up with half truth only suppressing the assault on the appellants and their women Both the versions vary on crucial points making it an impossible task for the court to disengage truth from falsehood. (Para 19)
Indian Penal Code - Section 304 - Sketch map and index do not help in the efforts of the court to determine the actual place of occurrence - Whether reliance can be placed on the mouthful evidence of P.Ws.? (No) - They are found to be unreliable in many respects - Whether prosecution version of the place of occurrence can be accepted? (No) - Whether prosecution version of assault by the appellants can be accepted? (No) - Both the versions seem to be highly doubtful in material particulars. (Para 23)
Indian Penal Code - Section 302 - Burden of proof - Fundamental tenets of criminal jurisprudence - Role of defence. (Para 24)
Held, it is one of the fundamental tenets of Criminal jurisprudence that the burden of proving the prosecution case squarely lies on the prosecution. This general burden never shifts. Defence is not bound to open its mouth so long as prosecution does not discharge its general burden of proving its case beyond reasonable doubt. Defence version may even be false, because a falsely instituted prosecution may compel the accused to adopt a false defence. So, prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt. (Para 24)
Result: Prosecution failed to prove its case beyond reasonable doubt and therefore, the impugned judgment and order of conviction and sentence set aside.
JUDGMENT AND ORDER
Barman Roy, J. - This appeal is directed against the Judgment and order of conviction and sentence dated 30.7.1990 passed by the learned Sessions Judge, Nagaon in Sessions case No. 48 (N-H)/87.
2. By the said Judgment, appellant No. 1 Md. Alimuddin was convicted under Section 302 I.P.C. and sentenced there under to suffer imprisonment for life and to pay a fine of Rs. 2000/- and in default of payment to undergo rigorous imprisonment for a further period of 6 months. Appellant No. 2 Md. Samsuddin was convicted under Section 324 read with 34 I.P.C. and sentenced there under to suffer imprisonment for 6 months. However, though appellant No. 3 and 4, namely, Md. Alimuddin and Md. Fakaruddin were convicted under Section 324 read with 34 I.P.C., they were ultimately released on probation of good conduct.
3. On 6.9.1985 at or about 9 A.M. Smt. Meherunnesa (P.W. 1) wife of deceased Tasir Ali, lodged a written complaint at Hojai Police Station alleging, inter-alia, that on 5.9.1985 at or about 9 P.M. present appellants and one Sri Md. Imamuddin being armed with lathi, spear etc. trespassed into the compound of the house of the complainant and injured her husband (deceased) with spear and one Smt. Kutubjan bibi with dao. It has further been alleged in the said complaint that when Abdul Kalam (P.W. 3) and Abdul Barik intervened after seeing the assault, they were also assaulted and injured with lathis. On the basis of the said complaint, an F.I.R. was registered at Hojai Police Station on 6.9.1985 at 9 A.M.
4. Some days thereafter, injured Tasir Ali succumbed to his injuries at Gauhati Medical College Hospital.
5. After completion of investigation, present appellants and another, namely, Md. Imamuddin were charge sheeted. But Md. Imamuddin absconded and fled to Bangladesh. Accordingly, the trial had to be proceeded with against the present 4 appellants only.
6. In course of the trial, prosecution examined 7 P.Ws. in all, including some eye-witnesses. Defence examined only one DW, namely, Dr. I.B. Dey. For proper appreciation of evidence, we consider it necessary first to deal with the injuries sustained by the deceased and some of his men on the one hand and the appellants and some of their women on the other.
7. P.W. 7 Dr. Homeswar Sharma held post-mortem examination on the dead-body of deceased. In course of his examination, P.W. 7 found 4 injuries. Injuries Nos. 1 & 2 were the results of surgical interference and therefore, we may overlook the same. So, for our present purpose, we are concerned with injury Nos. 3 & 4. Statement of P.W. 7 in respect of injury Nos. 3 & 4 in the trial court is quoted hereunder:
"3.A stiched wound placed obliquely (4 stitches) in the left side of the chest anterior part, 5 cm below the nipple, the medial and is slightly higher, lateral and is lower, after removing stiches found margins clean out. Wound spindle shaped and of size of 7 cm x 2 cm x abdominal cavity deep and placed over the 7th and 8th ribs which are cut obliquely and injured the underlying left dome of diaphragm. The diaphragm incised and stiched with catgut.
4. A stiched wound placed horizontally on the left lateral aspect of thorax in anterior axillary line over the 5th intercostal space with 2 stiches of silk, after removing stiches examined and wound is found spindle shaped measuring 3 cm x 1.5 cm x pleural cavity deep, margins clean cut and gaping at the centre."
P.W. 7 ultimately gave the following opinion: -
"In my opinion, the cause of death was shock resulting from the injuries sustained. The injuries were ante-mortem of which injury No. 1 and 2 were surgically made and injury No. 3 and 4 were made by pointed double edged sharp cutting weapons which was homicidal in nature. Time past since death till post-mortem examination was approximately within 12 to 20 hours. The injury No. 3 is more fatal and it alone can cause death. The oval shaped flat lathi may cause injury No. 3 and 4".
8. P.W. 5 Dr. A.K. Dey of Hojai P
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