Md.Ali Haider & Ors vs State Of Assam

CRIMINAL APPEAL NO. 1645 OF 2007

MD. ALI HAIDER & ORS. .. APPELLANT(S)

vs.

STATE OF ASSAM .. RESPONDENT(S)

WITH

CRIMINAL APPEAL

NO............OF 2009 (Arising out of SLP(Crl.No. 2182/2008)

MD. AMJAD ALI .. APPELLANT(S)

vs.

STATE OF ASSAM .. RESPONDENT(S)

O R D E R

Leave granted.

This appeal is directed against the judgment of the

Assam High Court dated 14/12/2006 whereby the conviction of

the appellants recorded by the Sessions Judge under Section

302/34 of the IPC has been confirmed by the High Court.

As per the prosecution story at about 11.30 p.m. on

the night of 11th October, 1999 four persons, the appellants

herein, entered the house of Khalilur Rehman and committed

his murder. The motive for the offence apparently was a

land dispute between the deceased and the appellants. The

incident was witnessed by Atabjan Nessa PW.1 and Saida

Khatun PW.3, the wife and daughter of the deceased

respectively. The alarm raised by them attracted several

other persons including Md. Moinul Haque (PW.6) a relative -2-

and neighbour of the deceased and his father Dilowar (PW.2)

and several other persons as well. On the information

received by Md. Moinul Haque (PW.6) he rushed to the

police station and lodged the report a short time later.

Sadananda Hazarika (PW.8) the Investigating Officer and the

Station House Officer of Police station Abhayapuri reached

the place of incident early next morning and made the

necessary inquiries. As he suspected that the four

appellants had been involved in the murder he made a search

for them but without success. He also seized various items

relevant to the investigation from the place of incident

and sent the body for the post-mortem examination which was

carried out on the next day and it is found that the death had been caused by the severence of the neck of the

deceased. On the completion of the investigation the

appellants were charged for an offence punishable under

Sec.302/34 of the IPC and as they pleaded not guilty they

were brought to trial.

The trial Court relying on the evidence of PWs. 1

and 3, the wife and daughter of the deceased, as

corroborated by the evidence of PWs.2,4,5,6,7 and 8 held

that the case against the accused appellants had been

proved. The plea of the defence that the FIR and the

inquest proceedings recorded on the next day did not

contain the names of the assailants was explained away by

observing that PW.1 had been rendered unconscious at the

time of the murder and had not been in a position to give -3-

all details as to the incident. For arriving at this

conclusion the trial Court relied on the evidence of Moinul

Haque (PW.6) who had deposed that PW.1 had been rendered

unconscious and had remained in that position till the next

morning. The Court also found that the four assailants had

arrived in the residential house of the deceased at dead of

night to settle scores over the land dispute and as such

the common intention to commit murder had also been proved.

An appeal was thereafter taken to the High Court which has

by its judgment dated 14/12/2006 confirmed the decision of

the trial Court. It is in this situation that these two matters are before us.

Mr. A.H.Laskar, the learned counsel for the

appellants, has raised primarily one issue before us. He

has pointed out that the observation of the trial Court and

the High Court that the statements of PWs.1 and 3 had

precedence over any other evidence and could not be ignored

under any circumstance was erroneous as the parties were

well known to each other being immediate neighbours but had

still not been named in the FIR and inquest proceedings.

The learned counsel seeks to draw the inference that though

the incident did happen at the time alleged but the

assailants had not been identified at that time and it was

thereafter on suspicion that they had been roped in. -4-

Mr. JR. Luwang, the State counsel has, however,

urged that the statements of PWs. 1 and 3 could not be

disbelieved for the simple reason that the incident had

happened in the residential house and the presence of the

family at dead of night was natural and that there was no

occasion to involve the present appellants in a false case.

We have considered the arguments of the learned

counsel. PW.1 is the star witness in this case. As per

her statement in Court many people had gathered at night soon after the incident on the alarm raised by her

including PW.2 Dilawar the scribe of the FIR, Siddique Ali

(PW.4) and Moinul Haque (PW.6) the persons who had actually

lodged the FIR. PW.1-further stated that the complete

details of the incident had been conveyed by her to PW. 2

and PW.6 before the FIR had been lodged. She further

stated that the Police had also reached the place of

incident during the night itself and recorded the

statements of several other witnesses. She further went on

to say that soon after the police arrived in the village

they took Moksed, Sabed, Sattar, Gafur and others to the

police station but they were subsequently released and the

present accused appellants were arrested thereafter. We

find that in the face of this evidence that the information with regard to the assailants had been conveyed

by PW.1 to PW.6 yet the FIR and the inquest report referred

to unknown assailants, proves that the assailants had not

been identified by PWs. 1 and 3. We also see from the

-5-

record that the inquest report had been signed by all the

persons who had arrived at the place of murder soon after

the incident on the alarm raised by PW.1. These persons

are PW.4 PW.6, PW.7 PW.2 and PW.5.

It is therefore apparent that up to the stage of

recording of the inquest proceedings on the 12th October,

1999, the names of the assailants were not known. The statement of PW.3 is also extremely relevant in so far as

the defence is concerned. She stated that PW. 2 was the

first to arrive in the house and that she had told him

every thing and that he had then left the house for a short

while and returned to that place again. She further stated

that her statement had been recorded on the night of the

incident itself. PW.3 (who was at the time of the incident

about 15 years of age) also claimed to have conveyed all

information to PW. 2 but we find that though he was the

scribe of the FIR, the names of the killers were not

entered therein. We have also gone through the evidence of

PW.6 the first informant. He is the only person who

deposed that the names of the assailants had not been

divulged by PW.1 for the reason that she was unconscious as her husband had been brutally murdered. As already

pointed out above, PW.1 has not for a moment stated that

she had been unconscious and on the contrary she testified

that she had informed PW.2 and PW.6 about the names of the

assailant and given other details of the incident to him.

The defence has also relied on the evidence of PW.7 Md.

-6-

Sofiul Haque, the neighbour of both the parties. As a

matter of fact this witness, though cited by the

prosecution, had virtually destroyed the prosecution story

but was not declared hostile. He categorically stated that

PW.1 did not disclose the names of the assailants either before him or to the others. This glaring contradiction

further strengthens Mr. Laskar's submission that the

prosecution was groping around and on suspicion had

involved the appellants. In view of the above observations

we are of the opinion that the statements of PWs. 1 and 3

cannot be relied upon.

The trial court as also the High Court have referred

to the fact that the accused had absconded. For this

observation reliance has been placed on the statements of

PW.8 the Investigating officer. We find from his evidence

that PW. 8 had made a very casual search for the accused.

On the contrary it has come in the evidence of Md. Sofiul

Haque (PW.7) who testified in his cross-examination that after he had arrived at the place of incident the four

appellants too had arrived at that place. The prosecution

story that the accused had absconded is also, therefore,

clearly in doubt. We, accordingly, allow these appeals, set

aside the judgments of the courts below and order the

acquittal of the appellants.

-7-

We are informed that the appellants in

Crl.A.No.1645/2007 are on bail; their bail bonds shall

stand discharged. Appellant Amjad Ali, who is in custody,

is directed to be released forthwith if not required in any

other case.

.................J. (HARJIT SINGH BEDI)

.................J. (DEEPAK VERMA) New Delhi, December 2, 2009.