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IN THE HIGH COURT OF GAUHATI
Mir Alfaz Ali, Manish Choudhury, JJ.
Md Abdul Azit And Anr - Appellant
Versus
State Of Assam And Anr - Respondent
Crl A No. 222 of 2018, 158 of 2018
Decided On : 26-02-2021
Criminal Procedure Code - Conviction under Sections 302/34, IPC - Summary of Acts and Sections: Section 374(2), Code of Criminal Procedure, 1973; Sections 302/34, Indian Penal Code (IPC)
Fact of the Case:
The case involved the conviction of four accused-appellants under Sections 302/34, IPC for the murder of Amsar Ali. The incident arose from a dispute over an unpaid wage, resulting in a fatal altercation at Amsar Ali's residence. The prosecution witnesses provided testimonies regarding the events of the incident, the medical treatment of the victim, and the alleged dying declarations of the deceased.
Finding of the Court:
The court found discrepancies and inconsistencies in the testimonies of the prosecution witnesses, raising doubts about their presence at the place of occurrence and the veracity of their accounts. The court also highlighted the delayed lodging of the FIR and the lack of medical evidence linking the accused to the victim's death. As a result, the court held that the prosecution evidence fell short of proving the charges beyond reasonable doubt, leading to the acquittal of the accused-appellants.
Issues: The issues revolved around the credibility of the prosecution witnesses, the reliability of the alleged dying declarations, and the absence of conclusive medical evidence linking the accused to the victim's death.
Ratio Decidendi: The court emphasized the importance of scrutinizing closely related witnesses' testimonies and the need for trustworthy and consistent evidence, especially in cases involving oral dying declarations. The court also highlighted the significance of the FIR and the absence of conclusive medical evidence in assessing the prosecution's case.
Final Decision: The court set aside the conviction and sentence of the accused-appellants, allowing their appeals and ordering their release. The bail bond of the accused-appellants, Abdul Azit, Mofizuddin, and Saiful Islam, was discharged, and Nobi Hussain was directed to be released forthwith.
JUDGMENT
Manish Choudhury, J. - Both these appeals -Crl. Appeal no. 158/2018 & Crl. Appeal no. 222/2018 -under Section 374 (2), Code of Criminal Procedure, 1973 ('the Code' and/or 'CrPC', for short) are preferred by four accused-appellants viz. (1) Mafizuddin, (2) Saiful Islam, (3) Abdul Azit and (4) Nobi Hussain against the judgment and order dated 31.03.2018 passed by the learned Sessions Judge, Morigaon in Sessions Case no. 46/2012, arising out of G.R. Case no. 822/2011. By the judgment and order dated 31.03.2018, all the accused-appellants have been convicted under Sections 302/34, Indian Penal Code (IPC) and they all have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/- (Rupees twenty five thousand) each, in default, to undergo further term of simple imprisonment of 6 (six) months each.
2. It was on 02.09.2011, one Ms. Asma Begum [P.W.2], daughter of Amsar Ali, resident of Baralimari (Goriapatti), Police Station -Bhuragaon, District -Morigaon lodged an Ejahar before the Officer In-Charge, Bhuragaon Police Station stating inter-alia that on 30.08.2011 last, an altercation ensued between her father, Amsar Ali and the accused-appellant, Nobi Hussain with regard to an amount of Rs. 50/- which amount Amsar Ali was to receive from the accusedappellant, Nobi Hussain as wage. It was alleged that out of said grudge, all the four accused -(1) Abdul Azit, (2) Nobi Hussain, (3) Mafizuddin and (4) Saiful Islam - armed with sharp weapons, trespassed into the house of Amsar Ali at about 9-00 p.m. on 31.08.2011 while Amsar Ali was sleeping. Allegations were to the effect that the accused, Nobi Hussain with the intention to kill, inflicted a dagger blow in the abdomen of Amsar Ali and as a result, he sustained grievous injury as he started bleeding profusely. Hearing screams of Amsar Ali, all rushed to his house. Though the accused persons could be recognized all of them had managed to run away. Amsar Ali was taken to Morigaon Civil Hospital wherefrom he was referred to Guwahati finding his condition critical. It was further mentioned that at the time of lodging the Ejahar, Amsar Ali was being treated in a hospital in Guwahati.
3. On receipt of the said Ejahar [Ext.-1], the Officer In-Charge, Bhuragaon Police Station registered a case being Bhuragaon Police Station Case no. 37/2011 (corresponding G.R. Case no. 822/2011) for offences punishable under Sections 457/326/34, IPC on 02.09.2011 and entrusted the investigation to one Sri Sarsing Terang [P.W.-6], a Sub-Inspector of Police attached to Bhuragaon Police Station.
4. During the course of investigation, the place of occurrence was visited by the Investigating Officer (I.O.) and he also recorded the statements of the witnesses under Section 161, CrPC. The victim, Amsar Ali had, in the meantime, expired in the Gauhati Medical College and Hospital (GMCH), Guwahati. The inquest on the dead body of Amsar Ali was done at the GMCH on 03.09.2011 in reference to Bhangagarh Police Station General Diary Entry no. 73 dated 03.09.2011 and Inquest Report [Ext.-2] was prepared. Thereafter, the post-mortem examination on the dead body of the deceased, Amsar Ali was done on 03.09.2011 with reference to Bhangagarh Police Station General Diary Entry no. 73 also at the GMCH and accordingly, the PostMortem Examination Report [Ext.-3] was prepared. After the death of the deceased, the I.O. made a prayer before the learned court to add Section 302, IPC against the accused persons and accordingly, Section 302, IPC was added in Bhuragaon Police Station Case no. 37/2011. During the course of investigation, the I.O. arrested the accused, Abdul Azit. But the other accused persons could not be arrested during the course of investigation and they were shown as absconders.
5. On completion of investigation, the I.O. submitted a charge sheet being Charge Sheet no. 06/2012 dated 26.03.2012 [Ext.-4] finding a prima facie case against three accused persons viz. (1) Abdul Azit [A-1]; (
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