MD ABU ZAFAR vs STATE OF ASSAM and ANR

This criminal appeal is filed by the accused convict Abu Jaffar (the appellant) against the Judgment dated 09.03.2004 passed by the learned

Sessions Judge, Dhubri in Sessions Case No.106 of 2002 convicting the appellant and another co-accused U/s 341/302/34 of the IPC and

sentencing them to imprisonment for life with a fine of Rs.2000/- each and in default, a further rigorous imprisonment for one year. It may be

noticed that although the judgment was passed on 09.03.2004, the appellant on account of his illiteracy claimed lack of knowledge that an appeal

could be preferred while in custody. Therefore, having come to learn the same belatedly, he submitted an application for legal aid before the jail

authorities which was then forwarded to the High Court Legal Aid Committee on 19.12.2013. Thereafter, the appellant upon being given legal aid

counsel, the instant appeal was filed with a separate application for condoning 4189 days delay in preferring the appeal. The application registered

as I.A. No.776 of 2016 was allowed vide order dated 02.03.2016 and that is how, the appeal has now come up for consideration.

Ms. R Dutta the learned counsel appears for the appellant as a Legal Aid Counsel while Mr. H Sharma, the learned Additional Public

Prosecutor, Assam appears for the State. Ms. R Dutta at the outset submits that as the appellant is languishing in jail for the last 13 years and 10

months now, the appeal should be heard expeditiously. Mr. H Sharma on the other hand submits that as the petitioner has already served the

aforesaid term in jail, he may as well submit an application for remission of the sentence before the appropriate Government U/s 432/433/433-A

of the Cr.P.C. However, having regard to the fact that the question of seeking remission from the appropriate Government is a separate and

independent issue which would remain open to the appellant even if the appeal is rejected, we decide to hear the appeal on merit.

The case of the prosecution in brief is that Md. Afjal Hoque (cousin brother of the deceased) lodged an FIR on 17.01.2001 before the Officer-

in-charge, Mancachar Police Station as a result of which, Mancachar P.S. Case No.10 of 2001 U/s 341/302/34 of the IPC was registered and

investigated. The contents of the FIR may be reproduced below for ready perusal:

To,

The Officer-In-Charge,

Mankachar Police Station.

Dated-Jordanga Pt.I, the 17th January, 2001.

Subject- Ejahar.

Complainant- Md. Afjal Haque, Son of Late Bainuddin Sheikh, R/o-. Jordanga Part-I, P.S.- Mankachar, Dist.- Dhubri (Assam)

Sir,

Humble submission is that at about 4 p.m. Today i.e. on 17.01.2001, the below mentioned accused persons, armed with dao, dagger

intercepted my younger brother Abdul Ziad all on a sudden on the village road in front of my house whereupon accused Abu Zafar

grabbed hold of my younger brother Abdul Ziad and accused Mokbul Hussain killed my younger brother by stabbing him in the chest

with dagger. Thereafter the accused ran away. There are many witnesses to the said incident.

I, therefore, pray to you to investigate into the incident take necessary action as per law and oblige.

The name of the deceased-Abdul Ziad, aged about 25 years, son of Late Hamdu Sheikh, R/o. Jordanga Part-I.

The accused persons

Mokbul Hussain, Son of-Late Mahej Sheikh, R/o. Jordanga Part-I, P.S.-Mankachar, Dist- Dhubri.

Abu Zafar, Son of- Habibar Rahman, R/o. Jordanga Part-2, P.S.- Mankachar, Dist- Dhubri.

Yours faithfully

L.T.I. of Md. Afjal Haque.

Upon conclusion of the investigation, the Investigating Officer filed the charge sheet against the appellant and the co-accused before the

Additional Chief Judicial Magistrate on 18.06.2001 who then committed the case to the learned Sessions Judge, Dhubri. Charge U/Ss?

341/302/34 of the IPC was then framed, read over and explained to the appellant and the co-accused. Both pleaded not guilty and claimed to be

tried and as a result, trial was set in motion. During the trial, the prosecution examined as many as ten prosecution witnesses after which, the

appellant was examined U/s 313 of the Cr.P.C.Defence did not adduce any evidence. Upon conclusion of the trial, the learned Trial Court vide

Judgment dated 09.03.2004 convicted both of them U/Ss? 341/302/34 of the IPC and sentenced them to suffer imprisonment for life with a fine of

Rs.2000/- each and in default thereof, rigorous imprisonment for another year. The learned Trial Court did not find it necessary to award a

separate sentence for the offence committed U/s 341/34 of the IPC.

Appearing for the appellant Ms. R Dutta submits that the conviction of the appellant cannot be sustained in as much as PW-1 who lodged the

FIR was not present on the spot at the time of the occurrence of the incident. He only came to the place of occurrence after hearing shouts from a

distance of about 100 feet only to find the co-accused Makbul Hussain running away from the place. Not having seen the appellant on the spot, he

failed to explain satisfactorily what exactly happened so as to implicate the appellant. Ms. R Dutta further submits that from the deposition of PW-

2 (wife of the deceased), it can be seen that she too was not present at the place of occurrence. Although in her deposition she claimed to be

standing on the road with her husband at the relevant time when the appellant came and caught her husband while the co-accused gave a knife

blow on his chest, in her cross examination, she deposed that she heard a commotion from her house and that there was a quarrel between her

sister-in-law and wife of the appellant. She also deposed that the appellant was apprehended from the house of Khalilur Rahman. Therefore, the

deposition of PW-2 being contradictory cannot be relied upon and be the basis for convicting the appellant moreso, when Khalilur Rahman was

not examined as a witness in the trial. Ms. R Dutta further submits that PW-9 (the Investigating Officer) although prepared a sketch-map of the

place of occurrence showing many houses nearby, he however failed to examine anyone from the nearby houses. PW-9 also named the deceased

as Jiadul whereas, the name of the deceased is Abdul Ziad. As a result, the entire investigation was conducted most perfunctorily and therefore, the

appellant could not have been convicted and sentenced with such defective investigation and untenable evidence. The learned counsel thus submits

that the deposition of all the prosecution witnesses being contradictory, the conviction and sentence of the appellant cannot be sustained and the

appellant should be acquitted from the charge after setting aside and quashing the impugned judgment. However, appellant may seek remission of

his sentence.

Mr. H Sharma, the learned Additional Public Prosecutor on the other hand submits that from the evidence led by the prosecution during trial,

there are sufficient materials pointing towards the guilt of the appellant. He submits that as many as ten prosecution witnesses were examined and

the deposition of each of the witnesses forms a chain leading to the guilt of the appellant. Therefore he submits that the impugned judgment of

conviction and sentence dated 09.03.2004 passed by the learned trial court calls for no interference. However, appellant may seek remission of his

sentence.

We have heard the learned counsel for the rival parties and have perused the materials available on record including the LCR. PW-1, cousin

brother of the deceased deposed before the Trial Court that on the day of the incident, he heard some shouts while he was working in his house

coming from a nearby distance of about 100 feet to his house. One small boy came to him and informed him that the deceased Abdul Ziad had

been stabbed. Upon rushing to the place of occurrence, he found Abdul Ziad lying on the ground with a stab injury on his stomach. He also saw

the co-accused Makbul Hussain running away from the place. According to him, Abdul Ziad died on the spot and he then took him in a pullcart to

the police station where he lodged the FIR. In his cross examination, he stated that although he did not see the incident of Abdul Ziad being

stabbed but he saw the co-accused Makbul Hussain running away from the place of occurrence.

PW-2, wife of the deceased deposed that on the day of the incident she and the appellant were standing on the road in front of their house to go

to the market when the appellant and the co-accused came. The appellant caught hold of her husband while the coaccused Makbul Hussain gave a

knife blow on the chest of her husband. As a result, her husband fell on the ground and died on the spot. She and her brother-in-law Jiarul Islam

then apprehended the appellant. As for the co-accused Makbul Hussain, he fled away from the place. Thereafter, Ziarul Islam took her husband in

a pull-cart to the police station and Abdul Zafar was handed over to the police. However, in her cross examination, PW-2 contradicted herself by

the stating that she heard a commotion on the road from her house and there was a quarrel between her sister-in-law Munni and the wife of the

appellant in front of their house before the incident. Her husband in fact had asked them not to quarrel and her brother-in-law Ziarul Islam was in

her house at the time of the occurrence of the incident. She also deposed that the co-accused Makbul Hussain immediately fled away after

assaulting her husband while the appellant also escaped as no male person were present at that time. The appellant was thereafter apprehended

from the house of one Khalilur Rahman.

PW-3 Baharul Islam wrote the FIR on being asked by PW-1 and had nothing much to say on his part. PW-4 Ziarul Islam, the younger brother

of the deceased in his examination-in-chief deposed that on the day of occurrence at about 4 pm, he and the deceased came out of the house to go

to the market. While the deceased was walking ahead at a distance of about 10 feet, the appellant and the co-accused appeared. The appellant

caught hold of his brother while the co-accused Makbul Hussain gave a blow in his chest with a dagger-like weapon. After the assault, the

appellant and the co-accused fled away in different directions. The appellant entered into house of one Khalilur Rahman from where he was

apprehended. As for his brother, he fell down on the road and succumbed to the injuries on the spot.

PW-5 Mahidul Islam in his examination-in-chief deposed that the deceased was known to him and he had seen his dead body at Mancachar

Police Station with injury in it. PW-6 Manik Mia, neighbour of the deceased deposed in his examination-in-chief that on the day of the incident,

two girls namely, Munni and Kohinoor were quarrelling on the road in front of the house of the deceased. On seeing them, he tried to intervene but

however by that time, the deceased came out from his house while the co-accused came out from their house and gave a blow with a dagger on

the deceased and went away towards the opposite direction. The deceased Abdul Ziad fell on the ground and he went to fetch a pull-cart.

However, in the meantime, somebody brought a pull-cart and Abdul Ziad was taken to hospital on it but soon after, he succumbed to his injury. In

his cross examination he deposed that the deceased was his uncle, Munni was the sister of Abdul Ziad and Kohinoor, sister-inlaw of the co-

accused Makbul Hussain.

PW-7 Zarina Khatun in her examination-in-chief deposed that in an afternoon about 3 years back, she and Abdul Ziad, the deceased were

talking on the road in front of his house when the appellant and the co-accused came out of their house. While the appellant caught hold of Abdul

Ziad, the co-accused Makbul Hussain gave a dagger blow on the chest of Abdul Ziad. As a result, Abdul Ziad while being taken to the hospital

succumbed to his injuries. In her cross examination she stated that at the time of the occurrence of the incident, no other persons except herself and

Abdul Ziad were present. The accused persons after committing the offence ran away. She also stated that both the informant i.e.PW-1 and the

deceased were her nephews. PW-8 Sri Dhaniram Bharali is the Investigation Officer who took over from the previous incumbent i.e. PW-9. He is

the one who submitted the charge sheet upon completion of the investigation. PW-9 Darendra Nath Hajoary is the one who conducted the

investigation. In his examination-in-chief, he deposed that on 17.01.2001 while he was at Mancachar Police Station, the Officer-in-charge

endorsed the FIR to him for investigation. After examining the informant and the writer of the FIR, he went to the place of occurrence. On

information given by him, inquest was conducted over the dead body by an Executive Magistrate deputed by the Sub-Divisional Officer(C). He

also prepared the sketch map of the place of occurrence and examined witnesses. According to him, the appellant was caught by the public and

detained in the place of occurrence from where he arrested him. As for the coaccused Makbul Hussain, he was untraceable at that point of time

and soon after, he was transferred out from Mancachar Police Station. In his cross-examination, he deposed that he arrested the appellant from

the place of occurrence upon being handed over to him by PW-1 and his brother.

PW-10 Deb Kanta Hazarika is the doctor who conducted post mortem examination upon the body of the deceased. In his examination-in-

chief, he deposed that on 19.01.2001, while he was posted as the Sub-Divisional Medical and Health Officer of Dhubri Civil Hospital, he

performed an autopsy in connection with Mancachar Police Station Case No.10 of 2001 over the dead body of the deceased Abdul Ziad. Upon

such examination, he found a triangular shape wound over the anterior chest wall about 1"" above the xiphisternum. On examination of the thorax,

pericardium was found punctured, congested, pericardial cavity full of clotted blood. The heart was punctured in its right side. The wound was an

incised wound, its shape triangular and margins inverted and directed upwards to the left from its entry point i.e. 5th intercostals space. The wound

had penetrated into the right ventricular cavity. The wound was ante-mortem in nature and caused by some sharp pointed object or weapon. In his

opinion, the cause of death was due to hemorrhage and shock.

The appellant was examined under Section 313 of the Cr.P.C.by the Court to explain the evidence led against him. The appellant except for

stating that he was innocent had nothing to say to the questions put to him. After convicting him, the appellant was heard on the point of sentence

and to which he pleaded that he was a poor man and his entire family was dependent on his income. He therefore prayed for leniency least his

whole family would face great difficulty in maintaining themselves.

From the deposition of PW-1, it can be seen that he had seen the co-accused Makbul Hussain running away from the place of occurrence

while he saw the deceased Abdul Ziad succumbed to his injury on the spot. PW-2 who is the wife of the deceased deposed that the appellant

caught hold of her husband while the accused Makbul Hussain gave the knife blow on his chest. However, in her cross examination she deposed

that the appellant was apprehended from the house of Khalilur Rahman. Likewise, PW-4 in his examination-in-chief also stated that he

apprehended the appellant from the house of Khalilur Rahman and therefore, it corroborates with the version of PW-2. PW-6 saw the co-accused

and the appellant assaulting Abdul Ziad, the deceased with a dagger. As per PW-7, besides deposing in her cross examination that she was the

only person to witness the incident, she also stated that she saw the appellant catch hold of Abdul Ziad while the co-accused Makbul Hussain gave

a dagger blow on the chest of Abdul Ziad. Therefore besides the discrepancy in so far as being the lone person available at the relevant point of

time, she saw the co-accused inflicting dagger blow in the chest of the deceased Abdul Ziad while the deceased was held by the appellant. PW-10

who conducted post-mortem examination of the deceased also found the chest injury on the deceased with his heart punctured on the right side. In

his opinion, the wound was ante-mortem in nature and caused by some sharp pointed object or weapon causing death due to hemorrhage and

shock. Although in his cross examination, he stated that the injury may also be caused by split bamboo, it may be noticed that it is nobody case

that the injury was caused by split bamboo upon the deceased. Therefore, the findings of PW-10 in the post mortem examination of the deceased

relates to and corroborates the version of the PWs-1, 2, 4, 6 and 7 made on oath. The evidence on record therefore reveals that on the date of the

incident i.e. 17.01.2001, the deceased Abdul Ziad was stabbed in the chest with a dagger by Makbul Hussain while the appellant Abu Zafar held

him. Inspite of the discrepancy as who and how the appellant was apprehend, there is no doubt about the fact the appellant and the co-accused

Makbul Hussain intentionally caused the death of the deceased Abdul Ziad by stabbing him on his chest. Although Makbul Hussain was the one

who inflicted the dagger injury, the appellant is equally responsible as he held the deceased when the injury was being inflicted. In view of Section

34 of the IPC, the appellant is also equally guilty for the murder of Abdul Ziad. From the act of the appellant and the co-accused and the

surrounding evidence, mens-rea is firmly established and therefore, we do not find any infirmity in the conviction of the appellant under section

302/34 of the IPC. The Judgment dated 09.03.2004 passed by the learned Sessions Judge convicting and sentencing the appellant to life

imprisonment and fine with a default clause is therefore upheld.

As regard remission of the sentence as submitted by the learned Additional Public Prosecutor, the same may be considered by the appropriate

Government as provided under sections 432/433/433-A of the Cr.P.C. after the appellant serves 14 years of imprisonment. The appellant

therefore may submit an application to the State Government through the Jail Superintendent for commuting the sentence of life imprisonment

imposed upon him. Since the appellant is said to be uneducated, the Jail Superintendent of Central Jail at Dhubri shall make necessary

arrangements to enable the appellant avail the services of the District Legal Service Authority, Dhubri district for making such application.

Before parting with the record, we place on record our appreciation for the assistance rendered by Ms. R Dutta, learned Legal Aid Counsel,

who shall be paid her fees which we quantify at Rs.7,500/-.

With the above observation, the criminal appeal is dismissed.