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2017 DAILYLAW 61 (GAU)

Abubakkar Siddique v. State of Assam

2017-01-11

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : 1. Since both Crl. Appeal Nos. 285/2014 and 328/2014 arise out of the same impugned judgment dated 26.8.2014 passed by the Additional District and Sessions Judge, Fast Track, Nagaon in Sessions Case No. 189(N) 2008, they are being decided by this common judgment and order. 2. All the eight appellants, namely, (i) Abubakkar Siddique (ii) Insan Ali (iii) Mirzan Ali (iv) Harun Rashid (v) Habibur Rahman (vi) Abdul Hakim (vii) Abdul Naser and (viii) Sangser Ali have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1000/- each with default stipulation. They have also been convicted under Sections 147 and 148 of the Indian Penal Code and sentenced to rigorous imprisonment for one year on each count. The jail sentences are, however, ordered to run concurrently. 3. The victim of the incident was Samsul Hoque, aged about 45 years. 4. According to the prosecution case, victim Samsul, prosecution witnesses and the appellants lived in the same village Khatowal falling within the jurisdiction of Police Station Bogoriguri, District Nagaon. They were therefore well known to one another. The relations of Samsul with the appellants were however strained due to property dispute. Therefore, on 10.6.2005 around 5 p.m., the appellants along with one absconding accused Md. Idrish Ali, after forming an unlawful assembly and in furtherance of their common object, caused multiple injuries to Samsul in a jute field with dao and fled. A co-villager Tutab Ali informed Hamida Khatoon (PW-1) that her husband Samsul was lying injured in a jute field. She immediately along with her sons Anarul Hoque (PW-3), Ziarul Hoque (PW-4) and Ikramul Hoque (PW-11) rushed to the place of occurrence. Likewise, on receiving information, brother Md. Azizur Rahman (PW-2) and Uncle Mazibur Rahman (PW-6) of Samsul also reached the spot along with other co-villagers. There, all of them found Samsul lying with multiple cut injuries. A push-cart was arranged, on which, Samsul was carried to Police Station Juria by Hamida, Azizur, Anarul, Ziarul and Mazibur Rahman. And on way, on their asking, Samsul, except for the name of appellant Abu Naser, disclosed the names of remaining appellants, as his assailants. At the Police Station, the condition of Samsul was found to be very serious by Sub-Inspector and Investigating Officer Prabin Kumar Gogoi (PW-15). He therefore referred him to Nagaon Civil Hospital for treatment. And on way, on their asking, Samsul, except for the name of appellant Abu Naser, disclosed the names of remaining appellants, as his assailants. At the Police Station, the condition of Samsul was found to be very serious by Sub-Inspector and Investigating Officer Prabin Kumar Gogoi (PW-15). He therefore referred him to Nagaon Civil Hospital for treatment. Anarul Haque, however, at that time, made ejahar exhibit 1 against the appellants. Prabin Kumar Gogoi also recorded the statement of Samsul exhibit 2 in the presence of witnesses – Nazrul Islam (PW-5), Mazibur Rahman (PW-6) and Abdul Mutlib (PW-7). In exhibit 2 Samsul mentioned the names of all the appellants as his assailants. 5. At the Nagaon Civil Hospital, the doctors also found the condition of Samsul very serious. They, therefore, referred him to Guwahati Medical College & Hospital. Even in the Guwahati Medical College & Hospital the condition of Samsul did not improve and he died around 3.15 a.m. on 11.6.2005 (following morning). 6. Dr. Putul Mahanta (PW-14) conducted the post-mortem examination on dead body of Samsul. He found following multiple cut injuries on the body:- “(1) Multiple cut injuries over right hand with missing of right thumb of variable sizes ranging from 4/2 cm to 2/1 cm in size with cut injuries of right index and middle finger which are found attached to remaining part of the hand by skin tag only. All the injuries were bone deep. (2) Multiple cut injuries 7 in numbers of variable sizes ranging from 7/4 cm to 4/3 cm horizontally placed X bone deep associated with fracture over the right hand at wrist joint. (3) Cut injuries at left ankle joint of size 7/4 cm X bone deep. All the bones were cut. (4) Multiple cut injuries of size ranges from 3/2 cm to 4/2 cm X soft tissue deep adjacent to the number 3 injury. (5) Cut injuries 4/3 cm in size over right ankle joint.” The doctor in his post mortem examination report exhibit 6 opined that Samsul died due to shock and haemorrage resulting from injuries sustained which were ante mortem in nature and caused by sharp cutting heavy weapon. 7. After the death of Samsul offence under Section 302 of the Indian Penal Code was also registered against the appellants and were accordingly charge-sheeted. In the charge sheet co-accused Md. Idrish Ali was shown as absconder. 8. 7. After the death of Samsul offence under Section 302 of the Indian Penal Code was also registered against the appellants and were accordingly charge-sheeted. In the charge sheet co-accused Md. Idrish Ali was shown as absconder. 8. During trial, the appellants pleaded false implication by the prosecution witnesses who were close relatives of Samsul. But the trial court mainly relying upon the evidence of oral dying declaration and written dying declaration exhibit 2 adduced by the prosecution, convicted and sentenced the appellants as aforesaid. 9. It is argued on behalf of the appellants that the trial court committed an illegality in believing the evidence of oral dying declaration and written dying declaration exhibit 2 of Samsul. According to the appellants had any oral dying declaration been made by Samsul to witnesses they would have surely mentioned this fact in their police case diary statements recorded under Section 161 of the Code of Criminal Procedure. In the police case diary statements none of the witnesses have mentioned about the oral dying declaration which itself establishes that their evidence in the Court regarding the same is wholly unreliable and unacceptable. As regards written dying declaration exhibit 2 the appellants have submitted that the same has been fabricated because no evidence could be found against them. On the other hand, the learned Additional Public Prosecutor, in reply, has defended the conviction and sentences of the appellants. 10. There is no eye witness to the incident. And the entire case of the prosecution is based on the oral and written dying declarations of Samsul. We shall, therefore, examine whether these dying declarations are reliable and truthful to warrant the conviction of appellants. 11. The oral dying declaration is stated to have been made by Samsul before Hamida Khatoon, Md. Azizur Rahman, Anarul Hoque, Ziarul Hoque and Mazibur Rahman on their asking, while he was being carried by them on a push-cart from the place of occurrence to the Police Station. As seen above, all these witnesses are closely related to Samsul. Hamida, Ziarul Hoque and Mazibur Rahman have deposed that while they were carrying Samsul on a push-cart, he was in a position to speak and on their asking, Samsul disclosed the names of appellants (except Abu Naser) as his assailants. But, in their earlier police case diary statements, none of them said anything about such disclosure of names by Samsul. Hamida, Ziarul Hoque and Mazibur Rahman have deposed that while they were carrying Samsul on a push-cart, he was in a position to speak and on their asking, Samsul disclosed the names of appellants (except Abu Naser) as his assailants. But, in their earlier police case diary statements, none of them said anything about such disclosure of names by Samsul. This vital omission therefore creates a serious doubt about Samsul making oral dying declaration to them. Similar is the evidence of Md. Azizur Rahman (PW-2) and Anarul Hoque (PW-3). The record reveals that two police case diary statements of Md. Azizur Rahman were recorded. And, in the first police case diary statement, there is no mention by him about the oral dying declaration, though in his second police case diary statement, he mentioned about it. The absence of mentioning of oral dying declaration in the first police case diary statement of Md. Azizur Rahman also creates a doubt that any oral dying declaration was made by Samsul. Anarul Hoque is son of Samsul and it is he, who made the ejahar against the appellants. According to his evidence, Samsul had disclosed the names of his assailants, while being carried to the Police Station on a push-cart. But, in the ejahar, there is no whisper of any such declaration by Samsul either to him or other witnesses mentioned above. Had Samsul really disclosed the names of his assailants, this important fact would have surely been mentioned by Anarul Hoque in his ejahar. Otherwise also, in the police case diary statement, Anarul Hoque says that such disclosure was made when Samsul was being carried from Police Station to the Hospital. This is in complete variation of the evidence of other witnesses, who say that disclosure of names of assailants was made by Samsul while he was being carried from the place of occurrence to the Police Station. All these vital lapses, improvements and contradictions in the evidence of witnesses - Hamida Khatoon, Md. Azizur Rahman, Anarul Hoque, Ziarul Hoque and Mazibur Rahman lead us to only one conclusion that no oral dying declaration was made to them by Samsul and they being the highly interested witnesses, their evidence have failed to pass the test of credibility. 12. As regards written dying declaration exhibit 2 of Samsul, we find that even this is neither truthful nor trustworthy. 12. As regards written dying declaration exhibit 2 of Samsul, we find that even this is neither truthful nor trustworthy. We say so because, firstly, it is recorded by Prabin Kumar Gogoi at the Police Station and there is no mention about it in the ejahar made by Anarul Hoque. In the ejahar, Anarul Hoque has mentioned that Samsul had been shifted to District Hospital for treatment. Meaning thereby Samsul was shifted to Hospital after recording of his dying declaration exhibit 2 and prior to making of ejahar. Then why there is no mention of dying declaration in the ejahar by Anarul Hoque is a mystery. Also there is no explanation by Prabin Kumar Gogoi as to why dying declaration of Samsul, which is said to be recorded prior to making of ejahar, has not really been treated as ejhar or First Information Report. Interestingly, Prabin Kumar Gogoi has himself admitted in his cross-examination that condition of Samsul was very serious and he was not in a position to speak properly. Not only this, Prabin Kumar Gogoi has further admitted that due to serious injuries caused to Samsul, he was unable to record his statement under Section 161 of the Code of Criminal Procedure at that time. We fail to understand that if Prabin Kumar Gogoi was unable to record the statement of Samsul under Section 161 of the Code of Criminal Procedure, how could he record his dying declaration exhibit 2. On further examination of dying declaration exhibit 2, we find that it is only a copy and not the original, though signatures of Prabin Kumar Gogoi and witnesses, namely, Mazibur Rahman and Abdul Mutalib appear to be original. Where the original dying declaration of Samsul is kept by the prosecution has not been disclosed. At least, it is not on record. The dying declaration exhibit 2 also does not bear the thumb impression and signature of Samsul. Therefore, the possibility of dying declaration exhibit 2 being fabricated by the police to implicate the appellants cannot be ruled out. 13. For these reasons, the impugned conviction and sentences of the appellants cannot be sustained. They are accordingly set aside. The appellants are in jail. They be released forthwith, if not wanted in any other case. 14. The appeals are allowed.