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2016 Supreme(Gau) 547
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
AJIT SINGH & MANOJIT BHUYAN, JJ.
Syed Azimuddin Ahmed – Appellant
Versus
The State of Assam – Respondent
Criminal Appeal No. 46 of 2015
Decided On : 14-12-2016
For the Appellants : Mr. H.R.A. Choudhury and Mr. I.A. Hazarika.
For the Respondent: Mr. M. Phukan.
Headnote:
Indian Penal Code,1860 - Section 302/34 and 299 - Arms Act - Section 25(1)(a) – Offence of murder - Default stipulation - Appeal against convicted - Appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine with default stipulation - He has also been convicted under Section 25(1)(a) of Arms Act and sentenced to rigorous imprisonment for five years and fine with default stipulation - Jail sentences have been ordered to run concurrently - Acquitted two co-accused persons, namely of charge under Section 302/34 of Indian Penal Code - prosecution case owned a Cloth Shop falling within the jurisdiction of Police Station - For some reason he intended to get happened to know a Constable of Central Reserve Police Force to the CRPF Camp - On asking of Ali agreed to kill for told Ali that since his face had become familiar to people of he would engage an assassin from a distant place then contacted the appellant to kill appellant was also serving CRPF as Constable and hailed from another District - Friendly relations with around and had tea in a Restaurant called - CRPF personnel rushed to place of occurrence - There they found Ali lying dead in a pool of blood with multiple cut injuries all over the body – Held, Weapon leaving the empty sheath on the spot - Seizure of live cartridge and blood stained currency notes has also not been proved from the possession of appellant (PW-) (PW-) were seizure witnesses of these articles was declared hostile as he denied any such seizure before him also in his cross examination admitted that Investigating Officer had brought .303 live cartridge in his pocket and after showing it to him, obtained his signature on seizure list - Supports the defense of appellant that seizure of .303 live cartridge from his possession was fabricated to falsely implicated him as the police could not find any other evidence against him - There is no Forensic Science Laboratory report to suggest that seized currency notes were stained with blood merely because appellant failed to explain how he sustained injury on his leg in our considered cannot be sufficient to arrive at verdict of his guilt - There is also no evidence that appellant was contacted by any person to kill and that he was ever seen with prior to incident – Court have no hesitation in holding that prosecution failed to prove its case beyond reasonable doubt against appellant – Court accordingly set aside impugned conviction and sentences and acquit him of the charges - Appeal is allowed
AJIT SINGH, J.
1. The sole appellant Syed Azimuddin Ahmed has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.50,000/- with default stipulation. He has also been convicted under Section 25(1)(a) of the Arms Act and sentenced to rigorous imprisonment for five years and fine of Rs.10,000/- with default stipulation. The jail sentences have been ordered to run concurrently. The trial court has, however, acquitted two co-accused persons, namely, Ali Hussain and Batcha Ali of the charge under Section 302/34 of the Indian Penal Code.
2. The victim of the incident was Khadem Ali, aged 38 years.
3. According to the prosecution case, Ali Hussain owned a Cloth Shop at Dalgaon falling within the jurisdiction of Police Station Dalgaon, District Darrang. For some reason, he intended to get Khadem Ali killed. Ali Hussain happened to know Batcha Ali, a Constable of Central Reserve Police Force “CRPF” because of the latter’s attachment to the CRPF Camp at Dalgaon. On the asking of Ali Hussain, Batcha Ali agreed to kill Khadem Ali for Rs.70,000/-. Batcha Ali, however, told Ali Hussain that since his face had become familiar to the people of Dalgaon, he would engage an assassin from a distant place. Batcha Ali then contacted the appellant to kill Khadem Ali. At that point of time, the appellant was also serving CRPF as Constable and hailed from another District Barpeta. Upon arrival of appellant at Dalgaon, Batcha Ali developed friendly relations with Khadem Ali. On 25.6.1999, around 4.40 p.m. Batcha Ali and Khadem Ali had tea in a Restaurant called “Dipti Hotel” at Dalgaon. Thereafter, they left the Restaurant together on their respective bicycles. After sometime, one gunshot was heard at the National Highway No. 52 in front of the Dalgaon CRPF Camp. The CRPF personnel, therefore, rushed to the place of occurrence. There they found Khadem Ali lying dead in a pool of blood with multiple cut injuries all over the body. They also found the appellant lying nearby with a gunshot injury on his leg. Then, someone from the CRPF Camp, informed the police about the incident. In the meantime, Aymon Nessa, wife of Khadem Ali, also made ejahar exhibit 9 at Police Station Dalgaon against unknown persons.
4. On receiving information, Sorhab Ali (PW-16), Sub-Inspector of Police Station Dalgaon, proceeded to the place of occurrence. He too found Khadem Ali lying dead and appellant lying injured. He prepared the inquest report exhibit 6 of the dead body of Khadem Ali. He also seized one plastic bag, one empty wooden sheath of khukhuri (dagger), one country made pistol with an empty cartridge of .303 (bullet) and an old bicycle from the place of occurrence. The seizure memo of these articles is exhibit 5. Sorhab Ali even took the appellant to Dalgaon Dispensary where his injury on the leg was bandaged. Sorhab Ali also seized Identity Card of appellant, one .303 live cartridge, one blood stained currency note of Rs.100/- one blood stained currency note of Rs.20/- and one currency note of Rs.2/- from his possession. The seizure list of these articles is exhibit 4.
5. Dr. Nikhil Ranjan Sharma (PW-9) conducted the post mortem examination on the dead body of Khadem Ali. He found as many as 26 injuries, out of which, 24 were cut and 2 were penetrating wounds. He, in his post mortem examination report exhibit 7, opined that Khadem Ali died due to injuries sustained.
6. After investigation, the police charge-sheeted the appellant as well as Ali Hussain and Batcha Ali for offences under Section 302/34 of the Indian Penal Code read with Section 25(i)(a) of the Arms Act.
7. During trial, the accused persons abjured their guilt and pleaded false implication.
8. Admittedly, the police could not get any eye witness to the incident. The entire case of prosecution therefore rested on circumstantial evidence. The trial court, in the absence of any reliable evidence against Ali Hussain and Batcha Ali that
