Obirul Islam @ Babul & Anr. vs The State Of Assam

(M. Zothankhuma, J)

Heard Mr. S. Dey, learned counsel for the appellants. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor for the State respondent.

This appeal is directed against the impugned judgment dated 21/10/2024 and the sentencing order dated 24/10/2024 passed by the Sessions Judge, Goalpara, in Sessions Case No.68/2017 (I/C Sessions Case No.53/2018), by which the two appellants have been convicted under Section 302/34 IPC and they have accordingly been sentenced to undergo imprisonment for life, with a fine of Rs.20,000/ each, in default, to undergo simple imprisonment for 6 months.

The brief facts of the case is that an FIR dated 18/08/2016 was submitted by Prosecution Witness No.1 (PW-1) to the Officer-in-Charge, Baguan Police Station stating that around 7:15 a.m on 18/08/2016, his younger brother, Saiful Islam and cousin Mofidul Islam had gone to the house of the accused Taleb Ali, to question him regarding a theft that had occurred at the house of Monsur Habibullah in Panikheti Market. There, the F.I.R. named persons killed Saiful Islam, by hacking him with a dagger. Mofidul Islam managed to escape with his life by running away, though he sustained injuries on his body during the attack. The informant (PW-1) thereafter prayed that necessary action should be taken against the following persons:

Pursuant to the FIR dated 18.08.2016, Baguan P.S. Cae No.110/2016 was registered under Section 143/302 IPC.

PW-12, who was the SI of Police was made the Investigating Officer and after having the inquest on the dead body done by himself, due to the Circle Officer being busy, he sent the body to the Goalpara Civil Hospital for post-mortem examination. PW-2, who was an eyewitness to the crime, was also sent to the Court of the Magistrate, for recording his statement under Section 164 Cr.P.C. After recording the statement of the injured eyewitness PW-1 and collecting his injury report, besides taking the statements of the witnesses, PW-12 submitted a charge-sheet on 20/04/2017 against Obirul Islam, the appellant no.1 under Section 302/34 IPC. The second appellant Obiron Nessa was arrested later on 17/03/2018 and consequently, a final charge- sheet under Section 302/34 IPC was submitted against both the appellants on 17/03/2018.

The learned Trial Court framed charge under Section 302 IPC against the appellant no. 1 on 18/09/2017 and under Section 302/34 IPC against the appellant no.2 on 06/04/2018. The appellants both pleaded not guilty to the charges framed against them and claimed to be tried.

The learned Trial Court thereafter examined 12 Prosecution Witnesses and after examining the 2 appellants under Section 313 Cr.P.C, the learned Trial Court came to a finding that the appellants had committed an offence punishable under Section 302/34 IPC. They were accordingly convicted under Section 302/34 IPC and sentenced to life imprisonment with a fine of Rs.20,000/- each, in default to undergo simple imprisonment for 6 months.

The appellants’ counsel has put to challenge the impugned judgment, on the ground that the evidence of the sole eyewitness, i.e. PW-2 was not wholly reliable. He submits that no weapons were recovered by the Police and no motive or reason for the crime has been established by the Prosecution. He also submits that the role of each of the appellants, in the death of the deceased, has not been explained by the Prosecution Witnesses. Further, the evidence of the other alleged eyewitness, i.e, PW-6 has been discarded by the learned Trial Court, as his testimony, which was to the effect that he had seen one of the appellants assaulting the deceased with a dao, while the other appellant was holding the deceased, had not been stated by PW-6 to the Investigating Officer during investigation. He also submits that the inquest on the dead body of the deceased had not been made by an Executive Magistrate as required under Section 176 Cr.P.C and had instead been done by the Police. He submits that as PW-2 had not given the circumstances which led to the killing of the deceased, by giving specific details, the Prosecution had failed to prove that the deceased had died due to the common intention of the appellants to kill the deceased. He also submits that there is no finding made by the learned Trial Court that the appellants had acted in furtherance of their common intention to kill the deceased and in the absence of such finding being made by the learned Trial Court, they could not have been convicted under Section 302 IPC read with Section 34 IPC.

The learned Counsel for the appellants further submits that while the evidence of PW-2 is only with regard to the assault being made to the deceased by the two appellants herein with a dao, the evidence of PW-1 is to the effect that PW-2 had told him that Babul Islam, i.e. appellant no.1, Abul Fazal and three women had killed the deceased. The learned counsel for the appellants submits that in view of the discrepancies in the evidence of the Prosecution Witnesses, it was not proper for the learned Trial Court to have convicted the appellants only on the basis of the evidence of PW-2, which was not wholly reliable. He accordingly submits that the impugned conviction of the appellants by the learned Trial Court should be set aside by this Court and in this regard, he has relied upon the judgments of the Supreme Court and this Court in : –

Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor for the State submits that there is no infirmity with the decision of the learned Trial Court in convicting the appellants under Section 302/34 IPC, inasmuch as, the evidence of the sole eyewitness, whose evidence is truthful, is enough to convict the appellants. The learned APP further submits that there is nothing in the cross-examination of PW-2, to show that any suggestion was made that PW-2 was not present at the place of occurrence at the time of the incident. She also submits that the evidence of PW-2, who clearly stated that the two appellants had hacked the deceased with a dao, had been corroborated by the doctor (PW-9), who had conducted a post-mortem examination over the deceased, stating that there were two cut injuries in the back of the neck of the deceased. She further submits that the evidence of PW-2 to the effect that he had been injured, on being assaulted by Abul Fazal with a wooden stick, had been corroborated by the evidence of the other Doctor (PW-10). She also submits that the plea of alibi taken by the appellants during their examination under Section 313 Cr.P.C has not been proven by the appellants by adducing evidence or giving any suggestion to the Prosecution Witnesses during cross-examination, that they were not present at the place of occurrence at the time of the incident. The learned APP also submits that the evidence of the Investigating Officer (PW-12) is to the effect that PW-12 had informed the Circle Officer, Balijan for conducting an inquest over the dead body. However, due to his official busy schedule, the Circle Officer could not come to the place of occurrence and had requested PW-12 to do the inquest over the dead body, which had accordingly been done by PW-12. She submits that the same does not in any manner vitiate the trial. The learned APP further submits that non-seizing/recovery of weapons by the Police and the non-establishment of the motive of the crime by the Prosecution does not vitiate the Prosecution case or the trial, when there is a eyewitness available. In this regard, the learned APP has relied upon the judgments of the Supreme Court in the cases of –

We have heard the learned counsels for the parties.

The evidence of PW-1 (informant) is to the effect that his cousin Mofidul Islam informed him that around 7 a.m. on 18.08.2016, Mofidul Islam and the informant's elder brother, i.e., the deceased Saiful went to Taleb Ali's house regarding a theft that had occurred at Monsur Ali's shop. When he went to the market, he saw his brother being taken there and some people in the market told him that his brother Saiful had been killed at Taleb Ali's house. On going to Taleb Ali's house, he found Saiful's body lying in the courtyard. His cousin Mofidul Islam was standing nearby. On falling down, PW-1 was taken home by some people. On asking Mofidul Islam (PW-2) as to what had happened, Mofidul (PW-2) stated that Babul Islam, the appellant No. 2, Abul Fazal and three women had killed his brother Saiful. PW-1 accordingly lodged an FIR. The police then took his brother's body for post-mortem examination and returned it for burial thereafter.

In his cross-examination PW-1 stated that he did not see the incident.

The evidence of PW-2 (eye-witness) is to the effect that he knew PW-1. PW2 stated that the deceased Saiful Islam was his cousin brother, who was having a grocery shop adjacent to the Panikheti railway station. As there was a theft in his grocery shop in the night, PW-2 (Mofidul Islam) and the deceased went to Panikheti for enquiring into the matter. While they were in the house of Hamid Ali, the appellant Nos. 1 and 2 (accused persons) armed with dao, gave blows on the back of the neck of Saiful Islam. Saiful fell to the ground and died on the spot. Thereafter, Abul Fazal attacked PW-2 with a wooden stick, which resulted in PW-2 running away from the house of Hamid Ali. While running, PW-2 fell down and became unconscious. On regaining consciousness after some person had poured water on him, he saw a police person. PW-2 stated that he was interrogated by the police and the police took away the dead body of Saiful. He also stated that PW-1 had lodged an FIR. PW-2 also stated that he was brought to the court for recording his statement by a Magistrate, which he exhibited as Ex.2 and his signatures as Ex. 2(1)2(3)(4).

In his cross-examination, PW-2 stated that his house was at a distance of 300 meters from the place of occurrence. He also stated that the houses of Atowar Rahman, Abu Sayed Mollah, Hussen Ali, Motior Rahman were located near the place of occurrence. However, at the time of occurrence, these persons did not come to the place of occurrence.

The evidence of PW-3 is to the effect that he knew the appellant No. 2 and that the other accused persons were not known to him. On 18.08.2016, at about 7 a.m., while he was in Mollah Market, PW-3 was informed about the commission of a murder in Panikheti village. On going to the house of Taleb Ali, he saw the dead body of Saiful Islam.

The evidence of PW-4 is to the effect that he knew PW-1 and both the appellants. He also stated that the deceased was his nephew and the appellants were his co-villagers. PW-4 stated that he did not know how his nephew had died or who was involved.

The evidence of PW-5 is to the effect that he knew the informant and the appellant. The incident had taken place about 2 years ago in the morning, in the house of the appellant No. 2 at Panikheti. He had been informed in the morning that there was a theft in his shop and on going there, he found his shop ransacked. PW-5 and other people followed the marks of atta (flour) leading to the house of the appellant No. 2. On questioning the inmates of that house, they denied their involvement in the theft. After going back, PW-5's uncles, i.e., Mofidul Islam and Saiful Islam, went to the house of the appellant No. 2 and after 20 minutes, PW-5 came to learn that Saiful Islam had been murdered at that place. On going to the place of occurrence, PW-5 found Saiful Islam lying dead in the courtyard. Police were informed and they investigated the matter. PW-5 said that PW-2 told them that Saiful had been murdered.

The evidence of PW-6 is to the effect that he knew the informant, the appellant and the deceased. As theft had taken place in the night in the shop of Monsur at Panikheti, Saiful and Mofidul had gone to the house of the appellant No. 1, as there were marks of atta (flour), rice etc., leading to the house of the appellant No. 1. In the house of the appellant No. 1, an altercation ensued between Saiful and Mofidul on one side and the appellant No. 1 and the mother of appellant No. 2 on the other side. The appellant No. 2 then caught hold of Saiful, while the appellant No. 1 struck Saiful with a dao on the back side of the head and neck. Thereafter, PW-6 and his uncle Noor Islam went to the place of occurrence, on hearing a hue and cry. When they saw the appellant No. 1 hitting Saiful with a dao on his back, the appellant No. 2 fled on seeing them. While Saiful fell down, Mofidul was at a little distance. Many people came to the place of occurrence and Saiful died at the place of occurrence. Police came and started the investigation. The Police recorded their statement and inquest was also conducted on the spot.

In his cross-examination, PW-6 stated that he saw the appellant No. 1 hitting Saiful from a distance.

The evidence of PW-7 is to the effect that he knew the informant, the accused persons and the deceased. He had heard that a murder had taken place. He also stated that Taleb Ali was the grandfather of the appellant No. 1. He also stated that he did not know anything, due to which PW-7 was declared hostile on the prayer of the prosecution.

In his cross-examination, PW-7 stated that it was not a fact that he had told the police that he had gone to the place of occurrence and found the dead body of Saiful Islam in the courtyard of Taleb Ali or that Saiful Islam had come to the house of Taleb Ali, to enquire about the theft in the grocery shop of Monsur Habibulla, as there were marks of atta (flour) leading to Taleb Ali's house and a quarrel took place with the family members of Taleb Ali.

The evidence of PW-8 is to the effect that he did not know the informant, though he knew the appellant and the deceased. He said that on the day of the occurrence, he saw people running to the house of Taleb Ali, who is the father of the appellant No. 1. On going there, he saw Saiful Islam lying dead in the courtyard and there was bleeding from the back of his neck. PW-8 stated that he came to know that a theft had been committed in the grocery shop of Monsur Habibulla and the deceased Saiful and Mofidul had come to the house of Taleb Ali, to enquire about it. PW-8 further stated that Monsur, Saiful and Mofidul were related to each other. He also stated that he did not know how Saiful died.

The evidence of PW-9 is to the effect that on 18.08.2016, while he was posted at Goalpara Civil Hospital as Medical and Health Officer, he conducted post-mortem examination on the dead body of Saiful Islam, 35 years of age. His finding was that rigor mortis had set in all the four limbs. The dead body had two cut injuries (incised wound) over back of the neck involving skin, soft tissues, cervical spines, spinal cord and vessels. He also saw clotted blood all over the body. In the opinion of PW-9, death was due to shock and haemorrhage, as a result of injury of the spinal cord and vessels, which was anti-mortem in nature.

The evidence of PW-10 is to the effect that on 18.08.2016, while being posted as Medical Officer at Joypur MPHC, he examined Mofidul Islam and found the following injuries:-

He also stated that though he had advised the patient to do an X-ray of the injuries and referred the patient to Goalpara Civil Hospital for better treatment, no X-ray report was submitted by Mofidul Islam, for which he could not give any final opinion regarding the injuries sustained by Mofidul Islam (PW-2).

The evidence of PW-11 is to the effect that he knew the informant and the deceased. He heard about the murder of Saiful Islam and going to the place of occurrence, he saw the dead body with blood oozing out from the neck of the deceased.

The evidence of PW-12, who is the Investigating Officer, is to the effect that on 18.08.2016, while posted as Officer-in-Charge of the Baguan Police Station, one Abdus Salam had informed him at around 8.05 a.m. that a murder had been committed at Panikheti Deodhuturi. On getting the information, he made G.D. Entry No. 373, dated 18.08.2016 and started the preliminary investigation. He informed the incident to his superiors and after reaching the place of occurrence, he found the deceased lying in the courtyard of Taleb Ali. He informed the matter to the Circle Officer, Balijana for conducting an inquest over the dead body. However, the Circle Officer requested PW-12 to do the inquest, as he was having a busy schedule. Accordingly, PW-12 conducted the inquest over the dead body and put his signature in the inquest report. He thereafter sent the dead body to the Goalpara Civil Hospital for post-mortem examination. He drew the sketch map of the place of occurrence and recorded the statements of the witnesses. Though the weapon used in the crime was a Khukri, as per the statements of the witnesses, he could not trace out the weapon. He also got information that a mob had set ablaze the house of Taleb Ali, for which he took measures to have the fire doused by informing the fire brigade. At about 7 p.m, the informant lodged the FIR in connection with the incident, due to which Baguan P.S. Case No. 110/2016 under Sections 143/302 IPC was registered. He also stated that he took the statement of the injured PW-2 and collected the injury report. PW-12 arrested the appellant No. 1 on 18.09.2016 and filed a part-charge sheet on 20.04.2017 under Sections 302/34 IPC. Though PW-12 found materials regarding involvement of the appellant No. 2, she could not be apprehended. However, he finally arrested appellant No. 2 on 17.03.2018 and filed charge sheet under Sections 302/34 IPC against both the Appellants.

In his cross-examination, PW-12 stated that he followed the mark of atta (flour), which led to the residence of the appellant No. 2, as it was alleged that she had committed theft of a grocery shop.

The examination of the appellants under section 313 Cr.PC, with regard to the adverse evidence adduced against them, is answered by them with a blanket denial. Further, they have both taken the plea of alibi, by stating that on the day of occurrence, they were at Singimari village and not at the place of occurrence.

As we can see from the evidence of the 12 Prosecution Witnesses, there are two eye-witnesses to the incident, i.e., PW-2 and PW-6. However, the learned Trial Court has discarded the evidence of PW-6, on the ground that the Investigating Officer in his cross-examination, had confirmed that PW-6 did not state before him, regarding witnessing the giving of dao blows by both the accused appellants upon the deceased. The learned Trial Court thereafter held that the evidence adduced by PW-6 was not reliable. However, the learned Trial Court found that the defence had failed to rebut the presence of PW-2 along with the deceased at the time of the incident at the place of occurrence and conviction was thus based on the evidence of PW-2.

Let us now first see as to whether the evidence of PW-2 (eyewitness) is reliable and whether the conviction can be based on the testimony of a single eyewitness. In the case of Anil Phukan (supra), the Supreme Court has held that conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary, provided the sole witness passes the test of reliability. It is only when the Courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony in material particulars, before recording conviction.

In the present case, we do not find anything to doubt the truthfulness of the evidence of PW-2, which has been corroborated by his statement made under Section 164 Cr.P.C and exhibited during trial. The evidence of PW-2 is to the effect that the two appellants had struck the deceased with a dao. Further, PW-2 had been attacked with a wooden stick by Abul Fazal. In his Section 164 Cr.P.C statement, PW-2 also stated that the appellant no.1 had struck Saiful on the head with a dao causing severe head injury, which made Saiful fall to the ground. Thereafter, the appellant no.2 also struck Saiful with a dao. Abul Fazal attacked PW-2 with a wooden baton. The above corroboration of the testimony of PW-2 by his statement made under Section 164 Cr.P.C is not shaken by the defence. In fact, it is not the case of the defence at the time of cross-examination of PW-2, that PW-2 was not present at the place of occurrence at the time of the incident. The fact that the doctor’s evidence, who conducted the post-mortem examination of the deceased shows that there were two cut injuries on the back of the neck of the deceased, also corroborates the evidence of PW-2 that the deceased was hit by both the appellants with a dao. The fact that the doctor's evidence who conducted post-mortem examination of the deceased, showed that there were two cut injuries on the back of the neck of the deceased, also corroborates the evidence of PW-2.

In the case of Nankaunoo (supra), the Supreme Court had held that in the light of unimpeachable oral evidence, which was amply corroborated by the medical evidence regarding a murder case, non-recovery of the pistol did not materially affect the case of the Prosecution. As such, keeping in view the above decision, we hold that non-seizure of the weapon i.e. dao/kukri, does not vitiate the Prosecution case or lead to an inference that there was no evidence showing that the appellants had not killed the deceased. A similar decision had been made by the Hon’ble Supreme Court, with regard to non-recovery of the weapon in the case of Arjun Singh (supra).

With regard to the stand of the appellants’ counsel that no motive or reason for the crime had been established by the Prosecution, we are of the view that motive or reason for the crime would have played a significant role, where a decision was to be made solely on circumstantial evidence. However, when there is an eyewitness to the crime, the non-establishment of the motive or reason for the crime loses its significance.

With regard to the Investigating Officer having conducted inquests on the dead body of the deceased, which should have been done by an Executive Magistrate as per Section 176 Cr.P.C, we find that the same does not vitiate the Prosecution case, as it is not the case of the appellants that the deceased had not died due to the injuries inflicted.

In the case of Jagadish Deori (supra), this Court had held that in a case involving murder, the evidence has to be strong and conclusive and that the action of the accused in causing the fatal blow or injury has to be specifically described. In the present case, the testimony of PW-2 has specifically mentioned the two appellants had struck the deceased with a dao, which is corroborated by his statement made under Section 164 Cr.P.C. As such, the act of the two appellants hitting the deceased with a dao has clearly been established by the Prosecution.

In terms of the judgment of this Court in Karimul Islam (supra) and Ranjan Pegu @ Rajani (supra), charge has to be framed under Section 302 and 34 IPC, for convicting the two appellants, with a finding recorded by the learned Trial Court indicating that there was a common intention on the part of both the appellants to murder the victim. As stated earlier, the evidence of PW-2 and which is corroborated by his statement made under Section 164 Cr.P.C clearly shows that their actions proved that there was a common intention on the part of both the appellants to murder the victim. Though the charge framed against the appellant no.1 does not show that he has been charged under Section 34 IPC as the appellant no.1 had been arrested earlier, we find that the appellant no.2 has been charged under Section 302 and 34 IPC as she could be arrested only on 17.03.2018, i.e. after the part charge-sheet had been submitted in relation to the appellant no.1. In any event, in terms of Section 464 Cr.P.C, an error or omission or irregularity in the charge does not render any finding or sentence or order of the Court of competent jurisdiction to be invalid, unless a failure of justice has been occasioned and the accused was misled by such error or omission or irregularity. In the present case, no such stand has been taken by the appellant no.1 that a failure of justice has been occasioned due to omitting Section 34 IPC during framing of charge against him the appellant no.1.

As the testimony of PW-2 has been corroborated by his statement made under Section 164 Cr.P.C, the same proved that both the appellants had struck the deceased with a dao, thereby causing his death, which has been further corroborated by the doctor's evidence. Thus, the common intention on the part of both the appellants to murder the victim has been proved in terms of the law laid down by the Supreme Court in Nagesar (supra) and by this Court in Ranjan Pegu @ Rajani (supra).

We also find that the fact that PW-2 was also injured had been proved by the evidence of the other doctor, i.e PW-10.

With regard to the plea of alibi taken by the appellants during their examination under Section 313 Cr.P.C, the appellants have not adduced any evidence on that score. Neither have the appellants given any suggestions to the Prosecution Witnesses during cross-examination that they were not present at the place of occurrence at the time of the incident. Thus the plea of alibi fails.

On considering all the above facts, we do not find any ground to interfere with the impugned judgment dated 21/10/2024 and the sentencing order dated 24/10/2024 passed by the Sessions Judge, Goalpara, in Sessions Case No.68/2017 (I/C Sessions Case No.53/2018).

The appeal is accordingly dismissed.

Send back the TCR.