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GAUHATI HIGH COURT
Suman Shyam, Hitesh Kumar Sarma, JJ.
Md Akibul Ali - Appellant
Versus
State Of Assam - Respondent
Criminal Appeal No. 395 of 2018
Decided On : 19-02-2020
Indian Penal Code – Sections 302, 201 – Indian Evidence Act – Section 27 – Issue on Murder, Weapon –learned counsel for the informant, has submitted that the weapon of offence was recovered by the investigating officer following a disclosure made in the alleged confessional statement by the accused-appellant to the effect that he had committed murder of the deceased with the said weapon of offence –Therefore, according to Mr. Sheikh, since the weapon of offence was discovered following the disclosure made by the accused-appellant is attracted to rope in the accused-appellant with the commission of the alleged offence –Held, Court has found that the alleged extra judicial confession made before the police or before the public has not been proved by the prosecution in the absence of corroboration and glaring inconsistencies in the evidence of the PW2, PW4, PW5 & PW7 –This is a case where the accused-appellant deserves to be extended the benefit of doubt, and accordingly, the accused-appellant is acquitted on benefit of doubt and is set at liberty forthwith –There is no other evidence as regards seizure of the weapon of offence – In view of such evidence and in the absence of corroboration by PW2 & PW3 and contradiction in the evidence of PW1 & PW5, this court is not inclined to believe that the alleged weapon of offence was recovered on being shown/produced by the accused-appellant –Appeal allowed
JUDGMENT
H.K. Sarma, J. - This appeal is directed against the judgment and order, dated 16.08.2018, passed by the learned Sessions Judge, Kamrup, Amingaon, in Sessions Case No. 12/2014 (old No. 190/2010), convicting the accused-appellant and sentencing him to imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment of fine, further rigorous imprisonment for 1 (one) month for the offence punishable under Section 302 IPC
2. The prosecution case, as unfolded during the trial, is that on 06.09.2009 (Sunday), the deceased Fazlul Haque, elder brother of the informant (PW1) had his dinner in the house of PW1. In the next morning, the informant/PW1 came to know from Basiran Nessa (PW10) that her husband/deceased did not return home the previous night. While they were searching for deceased Fazlul Haque, one Jaynal Uddin informed the PW1, on 10.09.2009 (Thursday), that he had seen a dead body in a ditch under the jute stacks which was kept soaked for the purpose of retting. Then, accompanied by his brothers and other villagers he went to the place and identified the dead body to be that of his elder brother Fazlul Haque. The deceased was called out from his house at about 8-9 pm on 07.09.2009 by the accused-appellant Akibul Hussain, Fulchan Ali, Rajesh Harijan and Sahjahan Ali and from that day he was missing. After detecting the dead body, PW1 informed the police about the occurrence. PW1 (informant) suspected the aforesaid four persons to have killed his elder brother/deceased.
3. On receipt of the FIR on the above facts, the in-charge of Tupamari police outpost forwarded the same to the Nagarbera Police Station. The Nagarbera Police Station registered a case, being Case No. 35/2009 under Sections 302/201 IPC, and its officer-in-charge had taken up the investigation of the case. On the other hand, the in-charge of Tupamari police outpost received information about the detection of a dead body in the E&D Drain at No. 1 Tupamari from one Majibur Rahman prior to the above FIR. This information was entered by the in-charge of the said police outpost in the General Diary vide G.D. Entry 122 dated 10.09.2009 and informed the matter to the officer-in-charge of Nagarbera Police Station. The in-charge of the said police outpost, examined as PW17, did the preliminary investigation of the case on the basis of the aforesaid General Diary Entry. He caused the inquest as well as got postmortem of the dead body done, prepared the sketch map and also examined 9 (nine) witnesses, and thereafter, handed over the case diary to the officer-in-charge of the police station. During the preliminary investigation, PW17 also seized some materials vide Ext.2. PW16, another investigating officer, also seized certain materials, vide Ext.4. After completion of the investigation, the investigating officer laid charge-sheet against the accused persons, namely, Akibul Ali and Fulchan under Sections 302/201 IPC.
4. After exhausting all required legal formalities, charge against the accused persons, namely, Akibul Ali and Fulchan was framed under Sections 302/34 of the IPC. The accused pleaded innocence to the charge and therefore the trial commenced. In their statements, under Section 313 Cr.PC, the accused-appellant and his co-accused Fulchan (who has been acquitted) claimed to be innocent.
5. In this case, the prosecution examined as many as 17 (seventeen) witnesses during the trial whereas the defence examined none.
6. After conclusion of the trial, the learned trial court acquitted the accused Fulchan and convicted the accused-appellant as indicated above.
7. We have perused the record of the learned trial court, evidence of the witnesses and the impugned judgment. We have also heard Mr. A. Paramanik, learned counsel for the appellant, Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam, for the state respondent No. 1 and Mr. M.A. Sheikh, learned counsel representing the informant.
8. It appears from the impugned judgment that the
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