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2010 Supreme(Gau) 408
IN THE HIGH COURT OF GAUHATI
Ranjan Gogoi and Brojendra Prasad Katakey, JJ.
Md. Azim Ali and Ors. - Appellants
Vs.
State of Assam - Respondent
Criminal Appeal No. 8 of 2009
Decided on : 08.06.2010
For Appellant/Petitioner/Plaintiff: M.H. Rajbarbhuiyan, A. Mannaf and R. Islam, Advs.
For Respondents/Defendant: P.P. Assam, Advs.
Headnote:
Code of Criminal Procedure, 1973 - Section 164 - Indian Penal Code, 1860 - Section 302/34 - Rigorous imprisonment for life - Penalty - Appeal is directed against the judgment of conviction passed by the learned Sessions Judge in Sessions Case convicting the Appellants and sentencing them to suffer rigorous imprisonment for life and to pay a fine each, in default to undergo simple imprisonment for 6 months each - Held, Relating to the culpability of Appellant No. 3, the husband of the deceased, there are, however, some doubts - As discussed above, P Ws-1, 2, 3, 6 and 7 in their earlier statement recorded on oath i.e. the statement recorded under Section 164, Code of Criminal Procedure, had not named the Appellant No. 3 - These witnesses except PW-7, in their deposition before the court have also not implicated the Appellant No. 3 - According to P Ws-1, 2 and 3, only the Appellant Nos. 1 and 2 were the perpetrators of the crime. PW-6 though has corroborated such version, he has, however, stated that another person from behind asked the Appellant Nos. 1 and 2 to set the deceased on fire, without, however, naming the third person. PW-7, however, has tried to improve his version by naming the third person to be the Appellant No. 3. Such version of PW-7 has not been corroborated by any other evidence and even by his own initial statement on oath recorded under Section 164, Code of Criminal Procedure - That apart all the prosecution witnesses including the PW-9, the daughter of the deceased, deposed that both the husband and the wife had maintained a very good relation - PW-9, who was with the deceased, has also stated in her evidence that the Appellant No. 3 was in another room when the occurrence took place - Appeal allowed.
B.P. Katakey, J.
1. This appeal is directed against the judgment of conviction dated 6.12.2008 passed by the learned Sessions Judge at Dhubri, in Sessions Case No. 117/2005, convicting the Appellants under Section 302/34, IPC and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000 each, in default to undergo simple imprisonment for 6(six) months each.
2. A first information report (FIR), (Ext.-11) was lodged by Md. Abdul Khaleque (PW-3), the brother of the deceased, on 9.1.2005, in Gouripur Police Station, alleging that at around 7 a.m. on 8.1.2005, on receiving information that his sister Mustt. Sabeda Bibi, married to Md. Abdul Kalam (Appellant No. 3), was hospitalized at Dhubri Civil Hospital for grievous burn injuries, he went to the hospital, where she informed him that her husband's elder brother Md. Azim Ali (Appellant No. 1) and the younger brother Md. Baten Ali alias Md. Abdul Baten (Appellant No. 2) on 8.1.2005 at about 3 a.m. entered her room and set her on fire by pouring kerosene over her body and when she raised a commotion, they ran away from the room and then immediately her husband Md. Abdul Kalam (Appellant No. 3) came running from another room and tried to extinguish the fire and made arrangement for her hospitalization, and further alleging that as her condition was serious, she was referred for better medical treatment and accordingly was taken to Cooch Bihar Government Medical Hospital, where she died in the afternoon of 9.1.2005 due to the burn injuries. Initially G.D. Entry No. 386, dated 9.1.2005 and thereafter Gouripur PS. Case No. 10/2005 under Section 448/307/326/302/34, IPC was registered, on the basis of the said FIR. The investigating agency during investigation recorded the statements of the persons claimed to be acquainted with the facts, under Section 161, Code of Criminal Procedure, prepared the inquest report, send the dead body for post mortem examination, prepared the sketch map (Ext.-13), seized certain articles vide seizure list (Ext.-9) and got the statements of Md. Baktar Ali Bepari (PW-1), Md. Abdul Kader (PW-2), Md. Abdul Khaleque (PW-3), Md. Kader Ali (PW-6) and Md. Abdul Kuddus (PW-7), recorded under Section 164, Code of Criminal Procedure by the learned Magistrate. On completion of the investigation the Appellants were charge sheeted (Ext.-12) under Section 302/34, IPC. Since the offence was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Dhubri on 3.8.2005 committed all the three accused Appellants for trial to the Sessions Court. The charge under Section 302/34, IPC was thereafter framed by the learned Sessions Judge vide order dated 15.12.2005 against all the Appellants, which when read over and explained, the Appellants pleaded not guilty and claimed to be tried. Hence, the trial commenced in the court of the learned Sessions Judge at Dhubri.
3. During the course of the trial, the prosecution in order to bring home the charges leveled against the Appellants examined 11(eleven) witnesses, namely, Md. Baktar Ali Bepari (PW-1); Md. Abdul Kader (PW-2); Md. Abdul Khaleque (PW-3), who lodged the first information report, Md. Kader Ali (PW-6); Md. Abdul Kuddus (PW-7); who are brothers and testified about the dying declaration made by the deceased; Dr. Ajit Kr. Phukan (PW-4), who was posted at Dhubri Civil Hospital and initially treated the deceased for the burn injuries; Sri Amalesh Sarkar (PW-5), the Asstt. Sub-Inspector of Police of Katowali Police Station in Cooch Bihar district, West Bengal, on 10.01.2005, who conducted the inquest over the dead body of Sabeda Bibi in M.G.N. Hospital, Cooch Bihar and collected the post mortem examination report; Md. Amzad Ali (PW-8), a neighbourer of the deceased, who along with others arranged for hospitalization of the deceased in Dhubri Civil Hospital; Mustt. Manowara Begam (PW-9), daughter of the deceased; Sri Santosh Kr. Mitra (PW-10), who was the Medical Officer
