Hussain Ali and Others vs State of Assam

S.K. Homchaudhuri, J.—This appeal is directed against the judgment and order dated 25.6.91 passed by the learned Sessions Judge, Barpeta in Session Case No. 40(B) of 1986, convicting the Appellants u/s 148/302/149/201 IPC and sentencing each of them to suffer R.I. for life and to pay a fine of Rs. 10,000/- each and in default to undergo R.I. for a further period of 3 years.

The prosecution was set in motion on the basis of F.I.R. filed by one Amar Ali, brother of the deceased at the Baghbar Police Station at 7.30 A.M. of 26.5.84, In the F.I.R. the informant alleged that in the afternoon of 25.5.84, his elder brother Anwar Hussain the deceased while returning home from Barpeta 8 (eight) accused persons learned in the F.I.R. with others gharaoed him and killed him with the gun, sharp weapons etc. After killing him the accused persons dragged the dead body of Anwar Hussain from the place of occurance and threw the dead body into the Beki river. When the informant went to rescue the dead body, the accused chased to kill him, but somehow he saved himself by taking shelter in the house of another person. After receipt of the F.I.R. the Baghbar P.S. Case No. 65/84 u/s 147/148/149/302/201 IPC was registered. Police after investigation the case submitted charge sheet. The case was committed by the learned Magistrate to the court of the learned Sessions Judge. Barpeta and the Session Case No. 40(B) 1986 was registered. The learned Sessions Judge, Barpeta on perusal of the materials on record framed charges u/s 148/302/149/201 IPC against all the accused Appellants. The accused Appellants not having pleaded guilty, the case was tried.

To bring home the charges against the accused Appellants, the prosecution examined eight witnesses of whom PW-1, PW-2, PW-3 and PW-6 were stated to be the eye witnesses to the occurence. PW-8 was the Investigating Officer. During the investigation the Investigating Officer visited the place of occurence and collected some blood stained soil mixed with grass as per seizure list marked as Ext. 2. The accused persons were also arrested. The blood stained soil collected, was sent for Serilogical Test, and after test it had been found that the soil contained human blood. The report of the Scientific Officer of the F.S.I., Assam, was proved, by P.K. Kalita, the Scientific Officer, Geology Division, F.S.I., Assam examined as PW-3 and was marked, as Ext.3. The accused Appellants adduced no evidence in their defence. In their examination u/s 313 Code of Criminal Procedure each of the accused simply stated that they were innocent.

After conclusion the hearing, the learned Sessions Judge on examination of the evidence and other materials on records held that prosecution was able to establish the charges against all the accused Appellants under Sections 148/302/149/201 IPC beyond reasonable doubt and on the basis of the finding convicted all the accused, persons under Sections 148/302/149/201 IPC and sentenced each of them to suffer life imprisonment for commission of the offence under Sections 302/149 IPC and to pay fine of Rs. 10,000/- each, in default, to undergo R.I. for further period of (sic) ears each. The learned Sessions Judge, however, did not pass any separate sentence against the accused Appellants for the commission of the offence under Sections 148/201 IPC. The learned Sessions Judge further ordered that in case the fine was realised from the accused persons, half thereof should be paid to the P.W.-2, P.W.-3 and P.W.-6 respectively, the daughters and son of the deceased.

Feeling aggrieved, the Appellants have approached this Court impugning the judgment of conviction and sentence passed by the learned Sessions Judge in Sessions Case No. 40(B), 1986.

We have heard Mr. J.M. Choudhury, learned Counsel for the Appellants as well as Mr. P.C. Gayan, learned Public Prosecutor for the State of Assam.

Mr. J.M. Choudhury, learned Counsel for the Appellant has assailed the impugned judgment of conviction on the following grounds - (i) the dead body of the deceased has not been recovered. There is nothing on record to show that any attempt was made to recover the dead body, as such, the prosecutions version as regards the cause of death cannot be accepted. In support of the contention Mr. Choudhury has placed reliance on the decision of the Hon''ble Supreme Court in the case of Rama Nand and Ors. v. The State of Himachal Pradesh reported in Ajit Singh Thakur Singh and Another Vs. State of Gujarat, wherein the Hon''ble Supreme Court amongst other held - "discovery of the dead body of the victim bearing physical evidence is merely a rule of caution and liar never been considered as the only mode proving Corpus delicti in murder." (ii) There are material contradictions in the statements of the witnesses, inasmuch as, while P.W.-6 stated that the deceased was killed by Ramdao, P.W.-1, 2 and 3 stated that the deceased was killed by gun-shot. That apart, the statement, of P.W.-1, 2 and 3 are discrepant on other material facts: (iii) Non-examination of the independent witnesses who were stated to have gathered soon after the incident as well as some of the charge-sheeted witnesses, without any explanation, caused a severe dent to the case of the prosecution. Mr. Choudhury has submitted that for all these infirmities the learned Sessions Judge, was not justified in convicting the accused Appellants.

Mr. P.C. Gayan, learned Public Prosecutor, on the other hand, submits that the evidence of the eye witnesses are consistent and free from any doubt and the statements do not suffer from material contradiction on the fact of killing Md. Anwar Hussain by the accused Appellants and throwing the dead body of Anwar Hussain into the current of Beki river after cutting into pieces. Mr. Gayan has submitted that the pieces of the dead body was swept by the current of Beki river and it was not possible to trace out the dead body. Mr. P.C. Gayan has further submitted that the materials on record his clearly established the charges against the accused Appellants beyond reasonable doubt and the learned Sessions Judge was justified in convicting and sentencing the accused Appellants by the impugned judgment.

We have considered the submissions made on behalf of the Appellants as well as on behalf of the State and have perused the evidence and other materials on record. On perusal of the materials on record, we find that the dead body of the deceased stated to have been thrown into the Beki river was not recovered. P.W.-1, the brother of the deceased has, however, deposed that there was strong current in the river and the dead body could not be found out. This statement has not been specifically challenged by the defence. Be that as it may, the failure on the part of the prosecution to recover the dead body per se is not fatal to the prosecution case.

P.W.-1 has deposed that on the day of occurrence, his brother Anwar Hussain (the deceased) while returning back from Barpeta get down from the boat at the ghat of river Beki at about 5 PM and proceeded towards his house and that when he reached the Tapajuli-Hassenpur road, the accused persons came out of the house of Jumaluddin and gheraod his brother Anwar. Besides dagger and Ramdao, the accused Panju and Hussain had guns in their hands. Accused Hnssain and Panju fired at Anwar with the guns and other accused hit him with Ramdao and dagger and killed him Thereafter, the accused persons dragged the body of the deceased towards the river, P.W.-1 has further deposed that he was at a distance of about 5 bighas from the place of occurrence and as he went forward and confronted the accused persons, accused Rahira and Hussain told to catch P.W.-1 and not to allow him to go away. Then P.W-1 asked Hazarat Ali to rescue the dead body of his brother. Accused Jalil fired at him. But he jumped into a ditch and then took shelter in the house of Nasimuddin Fakir. The accused persons cut the dead body of his brother Anwar (the deceased) and thaw into the river. There was strong current in the river. The dead body could not be found out. P.W.-2 is one of the daughters of the deceased. She has deposed that on the date of occurrence at about 5 PM her father Anwar Hussain (the deceased) was returning home from Barpeta and reached ghat and after landing on the bank of the river Beki from the boat, be proceeded towards home on foot and when her father reached the front of Kabir''s house, the accused persons held him. Accused Hussain fired m her father first with the gun. Accused Hussain, Jalil and Panju had guns in their hands in addition dagger and Ramdao. Her father had been cut into pieces with Ramdao and (sic) and was thrown into the river. The occurrence took place on the road as her father was coming towards home. She could see the incident fro n the place where she was standing. P.W.-3, another daughter of the deceased has deposed that on the date of occurrence her father (deceased) returned from Barpeta by boat and after getting down from boat at the Beki river ghat he came on the road. The occurence took place on the road in front of the house of Kabiruddin. Accused Hussain, Jalil Mafiz, Jaraal, Maniruddin, Janiruddin, Panju, Rahim and Maizuddin held her father. The accused persons had guns in their hands. Her father was shot at by the gun and the gun was kept aside and the head of her father was cut off by daggar. The body of her father was cut into pieces and was thrown into the river. She herself saw the occurence. There was day light enough to recognise people. P.W.-6, the son of the deceased has deposed that his father (the deceased) came from Barpeta, first by bus and thereafter by boat and after landing from boat while his father was coming on foot along Aliput and Hassenpur road, the accused persons attacked him. He was a little away from his father (the deceased) who could be seen from that place. He informed the people by raising hulla when his father was attacked. His lather''s body was theown into the river after he was killed. His father was killed with Ramdao. He knew the persons who had killed his father and they were accused Hussain, Manir, Maharuddin, Jamal, Jalil, Rahim, Maiza Haiya alias Maizuddin.

The cross-examination has not shaken the evidence of the witnesses. No doubt there are some contradictions in the statements of the eye witnesses. The eye witnesses are illiterate village people and they were examined after 2 years of the occurrence and some contradictions and discrepency in their statements are natural. But we do not find any contradiction in their statements on material facts. The statements of the witnesses as regards the gheraoing of the deceased by the accused persons and killing him and throwing his body into the river Beki are consistent. Their deposition as regards the commission of guilt of gheraoing and killing the deceased and throwing his dead body into the river by the accused persons are free from doubt and inspire confidence.

P.W.-1, the informant, has stated the names of 8 (eight) persons in the FIR, who according to him were involved in the crime along with other. In that FIR he has not mentioned the name of accused-Appellant No. 8, Maizuddin. In the application for bail, it has been stated that Maizuddin is 80 years old and this statement has not been controverted by the prosecution. Non mentioning of the name of Maizuddin in the FIR by the P.W.-1 who deposed that he had seen the incident, makes the story of involvement of the accused. Appellant No. 8, Maizuddin in the crime doubtful and, as such. Maizuddin is entitled to acquittal on benefit of doubt. However, on perusal of the evidence and materials on records, we find that the charges against the accused Appellant Nos. 1 to 7 have been established beyond reasonable doubt and non-examination of other witnesses has not caused any dent to the case of the prosecution. We do not find any infirmity in the decision of the learned Sessions Judge in convicting the accused Appellants No. 1. to 7.

For the reasons stated above, the appeal of the Appellant No. 3, Maizuddin is allowed. He is acquitted of the charges. But the appeal of Appellants No. 1 to 7, namely, of (1) Hussain Ali, (2) Maniruddin, (3) Mahiruddin, 4) Jamaluddin, (5) Abdul Jalil, (6) Mafizuddin and (7) Abdul Rahim are dismissed and the judgment of conviction passed by the learned Session Judge against them is upheld and confirmed,. We, however, modify the sentences passed against the Appellant No. 1 to 7 to the extent that each of them is sentenced to sufler rigorous imprisonment (RI) for life and to pay fine of Rs. 500/- each in default, to undergo RI for one month, Fines if relised shall be paid to P.W.-2, P.W.-3, and P.W.-6.

Accused Hussain Ali who was enlarged on bail during the pendency of the appeal, shall surrender and serve the sentence. The bail bond of Appellant No. 8 Maizuddin, who is acquitted is discharged.