IN THE COURT OF ADDL. SESSIONS JUDGECACHAR::::::::SILCHAR

Sessions Case No. 52/09Under Section 147/148/149/323/302 of the IPC

Present:- Shri S.P.Moitra, Addl. Sessions Judge, Cachar, Silchar.

State of Assam -Versus-

(1) Abdul Gani.(2) Hafizur Rahman.(3) Ipachow Mia(4) Gias Uddin(5) Saidur Rahman(6) Abdul Jalil(7) Abdul Basir Ahmed.(8) Zia Uddin Choudhury(9) Jakir Hussain.

..................... Accused

Date of evidence:- 5.9.09, 26.10.09, 18.11.09, 3.2.10, 20.4.10, 30.6.10, 23.7.10,8.7.13.

Date of Argument :- 13.8.13Date of Judgment:- 21.8.13

Appearance:-For the State :- Mr.F.H.Laskar. Addl P.P. with

Mr. N.N. Tagore, Mr. Prabal Deb, AdvocatesFor the accused:- Mr Y.A.Barbhuiya,

Mr. Aftabur Rahman, Mr. A.Biswas, Mr. Dilwar Hussain Mazumder, Mr. A. K. Roy, Advocates.

J U D G M E N T

1. The wheel of investigation moved in this case from an FIR (Ext.2),

lodged by Md. Sahab Uddin Choudhury (P.W.5) at Lakhipur P.S on the night

of 1/10/04. The case of the prosecution, as unfolded during trial, in brief, is

that on 1/10/04, at about 1 P.M., while Kamal Uddin, the father of the

informant was coming back to his house after offering Friday prayer at local

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Mosque, the accused persons named above by forming an unlawful assembly

attacked him (Kamal Uddin) with sticks and other weapons and voluntarily

caused him hurt. As a result of the said attack, Kamal Uddin immediately fell

down on the road and received grievous injuries. It is also alleged that Ramij

Uddin, the uncle of the informant and his cousins went to rescue his father,

but the accused persons also caused them hurt. On arrival of the local people,

hearing the alarm raised by them, the accused persons left the place and then

the victim Kamal Uddin was taken to the house. But, once again, the accused

persons attacked the house of Kamal Uddin and started pelting of stones in

the said house. Due to such attack, the injured could not be taken out and

after intervention of the relatives and other people, the accused persons could

be drove away. Thereafter, the injured was taken to Lakhipur hospital, via

Lakhipur P.S. by a Maruti Van and he was declared dead on being taken to

Lakhipur hospital.

2. On the basis of the said FIR, Lakhipur P.S Case NO.218/04 was

registered U/S 147/148/149/341/325/302 of the IPC and as I noted above,

the case was taken up for investigation. The inquest of the body of the

deceased was done at Lakhipur PHC and it was sent for Post Mortem

examination. In course of investigation, the I.O inspected the P.O, prepared a

sketch map of the P.O and made seizure. The I.O also recorded the

statement of the witnesses and further made arrests of the accused persons.

After completion of investigation, the charge sheet was submitted against, as

many as, 12(twelve) persons, showing three of them as absconders.

3. The presence of 10 (ten) accused persons could be procured.

However, the presence of accused Angaoba Mia and Haidar Hussain @

Manow could not be procured in spite of all efforts and they were declared

proclaimed absconder by the court and the case against them was filed.

4. The copies of the relevant documents were furnished to the accused

persons in compliance to the provision U/S 207 of the Cr.P.C. As the case is

exclusively triable by the Court of Sessions, Sri S.K.Podder, Ld. Addl.C.J.M.,

Cachar, Silchar committed the case to the court of Sessions. The accused

persons entered their appearance before the court of Ld. Sessions Judge,

Cachar, Silchar and they were allowed to remain on previous bail.

Subsequently, the case was made over to the court of Ld. Addl.Sessions

Judge, FTC., Cachar, Silchar . The Ld. Addl. Sessions Judge, FTC., Cachar,

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Silchar framed charge U/S 147/148/149/323/302 of the IPC against all the

accused persons. On being read over and explained the charges , the accused

persons pleaded not guilty and stood to face the trial.

5. To bring home the charge, prosecution examined, as many as,

9(nine) witnesses on its behalf and also exhibited a few documents.

Prosecution also proved the seized items as Material Exhibits. The defence

plea was of complete denial of any guilt. The statements of all the accused

persons were recorded U/S 313 of the Cr.P.C. Accused Gias Uddin, in his

specific defence, examined one witness on his behalf. Once argument

was heard in the Court of Ld. Addl. Sessions Judge, FTC, Cachar, Silchar

and after hearing the argument of the parties, the Ld. Addl.Sessions Judge,

FTC, Cachar, Silchar found the necessity to examine two other witnesses, as

court witnesses(C.Ws). Accordingly, summons were issued to them.

6. At this stage, the case has been transferred to this court. One

witness has been examined by this court as C.W. The other court witness,

who was summoned to appear, has since been expired. This court once

again recorded the further statements of all the accused persons U/S 313 of

the Cr.P.C . The accused persons refused to adduce any further evidence on

their behalf. Before hearing of the argument, accused Nizam Uddin

Choudhury expired and the case against him has been dropped.

7. I heard argument advanced by the Ld. Counsel for the parties. Two

sets of accused also submitted written argument in support their respective

cases.

8. In view of the contrary arguments of the parties, the following

points are formulated for determination:

Points for Determination:-

(I) Whether there was any inordinate delay in filing of the

FIR and whether there is any infirmity/discrepancy in the evidence of the

prosecution side, which can go to the root of prosecution case?

(II) Whether on 1/10/04, at about 1 P.M, all the accused

persons or any of them formed an unlawful assembly with the common

object to assault Kamal Uddin?

(III) If so, whether all the said accused persons or any of the

members of the said unlawful assembly were armed with deadly weapons

and used force or violence, to commit the offence of rioting?

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(IV) If so, whether all the accused persons or any of the

members of the said unlawful assembly, in prosecution of the common object

of the said assembly, intentionally assaulted Kamal Uddin with sticks, to

cause his death and also voluntarily caused hurt to Imran Khan and Ramij

Uddin?

9. Decision & Reasons Thereof :-

I have gone carefully through the entire evidence both oral and

documentary on record and the materials placed before me. I have also

considered both the oral and written arguments of the parties.

Before entering into the rival arguments of the parties, on the

factual aspect of the case, as well as, on law points, let me first discuss the

evidence of the witnesses on record.

P.W.5-Sahab Uddin Choudhury is the informant of the case.

Evidently, he was not present at the time of occurrence and he was reported

about the occurrence by other eye witnesses. His evidence discloses that the

occurrence took place on 1/10/04, at about 1 P.M. He testified that on that

day, he went to Silchar Town and returned back to his rented house at

Banskandi at about 3.30 PM. He deposed that then the owner of the house

Khetra Singh informed him that his cousin Hafiz had informed him over

telephone that in an incident, his (P.W.5's) father Kamal Uddin had been

assaulted, resulting injuries on his person. He testified that after getting the

information he immediately rushed to his home at village Dalugram and

then his mother, sister and others told him that his father had been taken

towards Lakhipur by a Maruti Van. His further testimony reveals that he

immediately rushed towards Lakhipur in a motorcycle and on the way, near

Phulertal Ferry-ghat, he found his father, uncle -Ramij Uddin, his cousins -

Hafiz Uddin, Babul Ahmed, Sanachowba Mia. He also added that his father

had sustained head injury and blood was oozing out. He further added that

he saw other injuries in his body. His further revelation is that at that time

his father Kamal Uddin was not in sense and could not speak and on his

queries, his uncle Ramij Uddin , cousin -Hafiz Uddin, Babul Ahmed and

others told him that on his way to return home from Friday “Namaj” from

the local Mosque, near a bamboo groove the accused Ipachow Mia, Angawba

Mia, Gias Uddin, Nizam Uddin, Jia Uddin, Abdul Goni, Hafizur

Rahman, Saidur

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Rahman, Manao Mia @ Haidar Hussain, Abdul Jalil, Abdul Basir and Jakir

Hussain had come out from the bamboo groove with sticks etc. and had

attacked his father and assaulted him with sticks. His further testimony is

that on the way to hospital, he informed the police and then took the injured

to Lakhipur PHC. His further testimony is that at Lakhipur PHC, the injured

was declared dead and then they returned back to Lakhipur P.S. and he

lodged the FIR, as narrated by his companions. He proved Ext.2 as his FIR

and Ext.2(1) as his signature. He also proved the inquest report as Ext.1 and

further stated that police conducted the said inquest over the dead body in

his presence. He also proved Ext.3 and Ext.4, as the seizure lists, by which

the I.O seized the split bamboos, pelted stones etc. He further proved M.Ext.1

as the split bamboos and M.Ext.2 as stones seized by the police.

During cross-examination, the witness asserted that Lakhipur P.S

is situated at a distance of about 11/12 K.M away from their house and

Banskandi( PIC is about 5/6 KM from their house. He also asserted that

on his arrival at the house, he found 20/30 people gathered there and also

asserted that few of them disclosed the names of the culprits. He added that

he did not inform the Banskandi PIC after getting the information from those

people. His further assertion is that at Phulertal Ferry-ghat his uncle Ramij

Uddin and his cousins narrated the incident to him and others. He further

added that he went to Lakhipur P.S. and stayed there for 6/7 munites. He

specifically stated that at that time he narrated the incident to the police

officers, but did not disclose the names etc. of the culprits. He also added

that he stayed about more than one hour at Lakhipur Hospital and

thereafter doctor declared his father dead. His further assertion is that after

that he along with Ramij Uddin, Hafij Uddin and Imran Khan came back to

Lakhipur P.S at about 10 P.M and lodged the FIR. He also stated that police

recorded his statement, as well as, the statements of Ramij Uddin, Hafij

Uddin and Imran Khan at the P.S. He further added that on that very night,

police came to the P.O and also visited their house and at that time police

seized some stones etc. During cross-examination the witness further stated

that at about 5.30 P.M he reached Phulertal Ferry-ghat and also stated that

the doctor declared his father dead at about 9 P.M. This witness admitted

that he did not specifically mentioned the names of Jakir Hussain Choudhury

and Abdul Basir in his FIR (Ext.2). The defence brought one or two

omissions, in comparison

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(6)

to his previous statement, recorded U/S 161 Cr.P.C., but none of them was

significant.

P.W.1 Hafiz Uddin is the cousin of the informant Sahab Uddin

Choudhury and he is an eye witness of the occurrence. His testimony

reveals that on the day of occurrence, i.e, on 1/10/04, they went to the local

Mosque, to perform Friday 'Namaj' along with Kamal Uddin (deceased), his

father Ramij Uddin, his brother Babul Ahmed, Sanachow Mia, Imran Khan

and others. He further testified that after offering the prayer, they came out

of the Mosque to proceed to their house and deceased Kamal Uddin was

proceeding ahead of them. He also testified that at that time, i.e, at about 1

P.M before reaching near the bamboo grove, suddenly accused persons

namely Ipachow Mia, Angaoba Mia, Gias Uddin, Nizam Uddin, Jia Uddin,

Abdul Gani, Hafizur Rahman, Saidur Rahman, Manao @ Haidar , Abdul

Jalil, Abdul Basir, Jakir Hussain came out of the said bamboo grove being

armed with sticks etc. and attacked deceased Kamal Uddin. He further

testified that at first, accused Ipachow dealt with a blow with stick in his

hand, on the head of Kamal Uddin(decased) and thereafter accused Angaoba

and Gias Uddin also dealt with blows with sticks on the head of said

deceased Kamal Uddin. He added further that Kamal Uddin (deceased)

immediately fell down on the path and thereafter the remaining accused

persons, namely, Nizam.Uddin, Jia Uddin, Abdul Gani, Hafizur Rahman,

Saidur Rahman, Manao @ Haidar, Abdul Jalil, Abdul Basir and Jakir

Hussain assaulted Kamal Uddin with sticks. His further testimony reveals

that accused Abdul Jalil hit Imran Khan on his teeth by the bottom side of the

stick and as a result, the teeth of Imran Khan was broken. He further added

that the accused persons also pelted stones, which caused injury at the nose

of Imran Khan. He added further that accused Zakir Hussain also pelted

stones to Ramij Uddin, which caused injury at his head. His further

testimony reveals that they tried to save Kamal Uddin and at that time they

also received some blows with sticks. He added further that hearing the alarm

raised by them, the neighbouring people came to the P.O and on seeing them

the accused persons left the place. His further testimony reveals that then

they carried Kamal Uddin to their house in injured condition but the accused

persons again assembled nearby their house and started pelting of stones to

their house , for which they could not

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go out for about two hours. He deposed that the villagers and their relatives

came and dispersed the accused persons and thereafter he informed the

matter to Khetra Singh of Banskandi over telephone asking him to inform

the the matter to his cousin Sahab Uddin Choudhury (P.W.5). He also added

that they carried the injured Kamal Uddin to take him to Lakhipur hospital

and when they reached Phulertol Ferry-ghat , then Sahab Uddin came there

and they narrated the incident to Sahab Uddin (P.W.5). He also testified that

then they went to Lakhipur P.S along with Sahab Uddin and informed the

police and the police immediately sent the injureds to Lakhipur PHC. He

added that while Kamal Uddin was being carried from their house to

Lakhipur PHC, he was in a state of unconscious and he was unable to speak.

He added further that at Lakhipur PHC, the doctor declared Kamal Uddin

dead after his examination. He also added that the other injured persons

were also examined at Lakhipur PHC. His testimony further reveals that his

brother Sahab Uddin lodged written FIR at Lakhipur P.S and thereafter

police did inquest over the dead body of deceased Kamal Uddin at Lakhipur

PHC on the following day. He proved Ext.1 as the inquest report and Ext.1(1)

as his signature. He specifically stated that he was present at the time of

holding inquest over the dead body of Kamal Uddin. He also stated that

police recorded his statement after filing of the FIR on that night at about 10.

30/ 11 P.M.

`During cross-examination , the witness stated that the Mosque in

which they offer prayer is known as Dalugram Mosque. He also asserted

that it was a Friday and 40/50 people went to the said Mosque to offer

“Jumma” prayer . He added that they were first to come out from the Mosque

and other people also came out after them. He asserted that the house of

accused Nizam Uddin is situated to the contiguous west of the Mosque and

towards east of the Mosque their house is situated in which deceased Kamal

Uddin, his father Ramij Uddin , he himself and his brothers and cousins

reside. He also narrated that there is a bamboo grove in between their house

and the Mosque. He also narrated that there is a small path to the south of

the Mosque and another path is on the north and west of the Mosque and

people used to go to the Mosque by using those paths. He added further that

there is broken bamboo fencing on the north of the Mosque and there is also

a wall

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of the Mosque on the west to the Mosque , which was broken at some places

and as a result, there were stones and bricks bats lying scattered. He also

testified that Banskandi POP is at a distance of 5/6 KM from their house and

there is also a small hospital at Banskandi. He added that Lakhipur P.S is

situated at a distance of 12/13 KM from their house. His further assertion is

that there was no Imam in the Mosque and on that Friday they offered the

prayer themselves. He denied, having any dispute regarding the appointment

of Imam. During cross-examination this witness also stated that Kamal

Uddin did not fall down immediately after the blow, given by Ipachaw

and added that he remained standing for a while. He further added that the

assault continued for about 10/15 minutes, but nobody obstructed the

accused persons. He also added that at the time of occurrence, the other

people also came to the P.O. This witness also stated that at the P.O. when

the assault was going on, there was also pelting of stones. He added that they

jumped over the body of the deceased Kamal Uddin to save him and added

that he sustained minor injuries, but did not show the same to the doctor.

His further assertion is that in their house, about 15/20 people attacked

including the accused persons and all of them pelted stones in their house for

about two hours. He also re-asserted that at about 4.30 PM (they started for

Lakhipur P.S. with the injured Kamal Uddin and reached Lakhipur P.S at

about 7/8 P.M. He added that he along with his father Ramij Uddin, Babul

Ahmed, Sanachao Mia, Imran Khan, injured Kamal Uddin, Sahab Uddin and

Mazida Bibi went to Lakhipur P.S. He added that they stayed there for 10/15

minutes and the police officer of Lakhipur P.S sent them with requisition to

Lakhipur PHC along with constable. He specifically stated that they did not

submit any written FIR at the Lakhipur P.S. during their first visit and they

also did not give any statement there at that time. His further assertion is

that at about 9 P.M, Kamal Uddin died at Lakhipur hospital and thereafter

they came to Lakhipur P.S and filed the FIR, which was written by Sahab

Uddin Choudhury(P.W.5) himself. He added that in the said FIR , the names

of the accused, who actually assaulted Kamal Uddin were mentioned. He

stated that at about 1 AM of that night, police came to the P.O. along with

them and police officer inspected the P.O and seized some stones from the

P.O. He added that police remained at the P.O for about one hour. He also

stated

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that after visiting the P.O., police went to their house and seized some stones

from their house. He further added that on that night, police made search for

the accused persons, but did not find them. He specifically admitted that

Ramij Uddin is the brother of Kamal Uddin and Imran Khan, Sanachao Mia,

Babul Ahmed and he himself are the sons of Ramij Uddin. He also added

that the other witness Mazida Bibi is the daughter of deceased Kamal Uddin.

He further added that the charge sheeted witness Mainur Uddin, Babu Mia

and Abdul Karim belonged to their own clan. He also added that the witness

Imran Khan, Majida Bibi, Mainur Uddin, Babu Mia, Babul Ahmed and Abdul

Karim were with them and these witnesses were present along with them.

The witness was confronted with his earlier statement, recorded U/S 161 of

the Cr.P.C. Defence brought a omission that he did not state before police

that Gias gave a blow "on the head" of Kamal with his stick, the I.O. (PW9)

confirmed it, but added that the witness very much stated that Gias dealt with

a blow with his stick. The I.O. further confirmed that the said witness did not

name Abdul Jalil and also stated before him that the accused Hafizur, Saidur

and Abdul Gani were standing there with sticks. I.O. also confirmed that the

said witness did not name the accused Jakir Hussain and Abdul Basir.

Lending corroboration to the said evidence of P.W.1, P.W.2- Imran

Khan also testified that on 1/10/04 , he along with Kamal Uddin (deceased),

his father Ramij Uddin, his brother Hafij Uddin , Senachao Mia , Babul

Ahmed , Abdul Goni, Abdul Salam and others went to local Mosque for

offering Friday prayer. He corroborated that after offering the Namaj when

they came out from the Mosque and started for their house, after a little

distance suddenly 10/12 persons came out from behind a bamboo groove

being armed with sticks. He testified that amongst those accused persons

accused Nizam and Zia Uddin ordered the remaining accused persons to

assault them. He also corroborated that at first accused Ipachaw dealt a blow

on the head of Kamal Uddin with a stick and thereafter accused Angaoba and

Gias Uddin also dealt blows on the head of said Kamal Uddin with sticks.

His further corroboration is that as a result, his uncle Kamal Uddin fell down

on the ground and thereafter other accused persons also assaulted his uncle

with stick. He further testified that they tried to save Kamal Uddin from

being assaulted and then Abdul Jalil assaulted him by the end of stick

and as a

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(10)

result he sustained injury at his mouth and one front side tooth of the upper

jaw was broken. He also added that hearing the hullah raised by them, the

neighboring people came there and on seeing them the accused persons left

the place and at the time of leaving , the accused Abdul Basir pelted stones

to them and one stone hit his nose causing injury. He also stated that one

stone pelted by accused Jakir Hussain, hit his father Ramij Uddin causing

injury at his head. He added that thereafter they carried the injured Kamal

Uddin to their house, but accused Nizam and Jia along with other accused

persons came and continued pelting of stones to their house, for which they

could not come out of the house. He added further that the accused persons

threatened them not to dare to come out and also vowed that they had

already killed one and they would also kill more. He added that thereafter

their relatives came there and drove the accused persons and then they

arranged a van and took Kamal Uddin to Lakhipur hospital. He also

corroborated the other facts regarding going to Lakhipur P.S., getting

treatment at Lakhipur PHC, declaring of Kamal Uddin dead at the said PHC

and then lodging of FIR by the informant etc.

During cross-examination, defence could not disprove his

evidence or could not bring anything from his mouth, which can help them.

In spite of lengthy cross-examination, the witness stood firm in his evidence.

He specifically stated that on that day the accused persons did not go to offer

the “juma” prayer. He also stated that there were 40/50 persons who

performed their “juma” namaj . He admitted that it is compulsory that the

“Juma” prayer should be performed behind the Imam and also admitted that

there was no Imam on that day. However, he stated that they performed

Juma prayer personally without Imam. He also asserted that 18(eighteen)

'rakats' are performed in 'Juma” , but added that some people performed

less prayer and other may perform more prayer. He further added that one

Kamal Uddin Choudhury was the Imam was the Imam of the Mosque at that

time but on that day he was not there at the Mosque. This witness further

added that in the year 2004, there was no mobile phone in there village and

his brother Hafij Uddin requested Khetra Singha over telephone from their

adjacent house to inform Sahab Uddin. This witness, during cross

examination, specifically stated that when they went first to Lakhipur P.S.,

they were there

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for about 10/15 minutes and at that time Police did not ask any question to

either Kamal Uddin or to them, as the condition of Kamal Uddin was

precarious. The defence brought some omissions on record, in comparison to

his previous statement, recorded U/S 161 of the Cr. P.C. But, save and except,

the fact that he did not mention the names of Jakir Hussain Choudhury and

Basir Uddin before Police, nothing significant could be brought.

Close on the heels , the testimonies of P.W.3-Sanachowba Mia and

P.W.4- Romiz Uddin Choudhury are also important . Both of them are the

eye witnesses of the occurrence and P.W.4- Ramij Uddin also received injury

at his forehead due to pelting of stones. The said two witnesses lent full

corroboration to the testimonies of the other two eye witnesses,i.e, P.W.1-

Hafij Uddin Choudhury and P.W.2-Imran Khan. They corroborated that on

1/10/04 , at about 12 O' clock at noon, they went to local Mosque to offer

Friday prayer and deceased Kamal Uddin was also with them. They added

that after offering the 'Namaj' they left the Mosque at about 1 P.M and

started for their house. Their testimonies also reveal that Kamal Uddin was

ahead of them and they followed him and after proceeding a little distance

suddenly some people about 10/12 in numbers came out from behind the

bamboo groove with sticks in their hands. They corroborated that accused

Nizam and Jia Uddin ordered the remaining accused persons to assault

Kamal Uddin and then accused Ipachaw dealt a blow to Kamal Uddin on his

head with a stick. They added further that thereafter accused Angaoba and

Gias Uddin also dealt blows with sticks on the head of Kamal Uddin and as

a result of that Kamal Uddin (deceased) immediately fell down on the

ground. They further added that thereafter the remaining accused persons

also started assaulting Kamal Uddin with sticks. It is the further evidence of

the said two witnesses that when they tried to save Kamal Uddin, accused

Abdul Jalil dealt a blow to Imran Khan by the end portion of the stick and

as a result of that his one tooth of the upper jaw was broken. The said two

witnesses also corroborated that hearing the alarm raised by them people

gathered there and on seeing them the accused persons left the P.O.

P.W.3 -Sanachowba Mia corroborated that at the time of leaving

the P.O, accused Abdul Basir pelted stones to them and one of the said

stones hit the nose of Imran Khan , causing injury. The further evidence of

the said witness is that accused Jakir Hussain also pelted stone, causing

injury at

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the forehead of his father. P.W.4 also corroborated the same and stated that

due to pelting of stones he himself and his son Imran Khan received injuries.

Both the witnesses further corroborated that they lifted Kamal Uddin in an

injured condition to the hosue and thereafter once again, the accused persons

assembled near their path and started pelting of stones to their house. They

further added that accused persons also threatened them not to dare to come

out from the house. The witnesses corroborated that out of fear they could

not come out from their house, till their relatives came and drove the

accused persons away . The said two witnesses also gave a vivid description,

corroborating the evidence of others, regarding the taking of the injured to

Lakhipur PHC, declaring him dead by the doctor and then lodging of the FIR,

the inspection of the P.O., by the I.O. etc.

During cross-examination, both the witnesses admitted that there

was no Imam to lead the Friday prayer on that day. They also stated

specifically that accused persons did not attend the Friday prayer on that

day. P.W.4-Ramij Uddin Choudhury further added that the said accused

persons were kept themselves concealed behind the bamboo groove to

commit the offence. To a specific question during cross-examination, P.W.3-

Sanahabow Mia admitted that he stated before police that accused Saidur,

Hifjur , Manow, Abdul Goni , Nizam and Jia Uddin were with them with

sticks. P.W.4- Ramij Uddin also specifically stated that they took the injured

to Police Station first and then police sent the injured to Lakhipur PHC with

a slip. He further specifically stated that after examining Kamal Uddin , the

doctor declared him dead. This witness also stated that police came to the

P.O on that night and tried to apprehend the accused persons. This witness

stated that Kamal Uddin was ahead of them and he was immediately behind

Kamal Uddin (deceased) and specifically stated that the occurrence took

place about 30 cubits away from the Mosque.

Broadly in the same tune, P.W.7- Musstt. Mazida Begum , the

daughter of Kamal Uddin also testified that on the date of occurrence her

uncle, Ramij Uddin, Hafiz Uddin, Babul Amedd, Sanachow Mia, Imran

Khan , Abdul Goni and her father Kamal Uddin went to offer 'Juma' prayer

at the nearby Mosque. She added that while they were coming back, she

heard the sound of “ Maro-Maro” . She further testified that on hearing the

sound she

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(13)

came out from the house and saw accused Ipachaw and Angaoba to assault

her father with sticks. She further added that thereafter the other accuseds

also assaulted his father with sticks . She specifically added that when

accused Gias inflicted a blow with his stick on the head of her father, he fell

down on the ground. She also added that hearing the hullah the village

people came to the P.O and then the accused persons left the place and

started to pelt stones on them. She added that as a result of that Imran Khan

sustained injuries at his nose and her uncle Ramij Uddin also

sustained injuries on his forehead. She added that thereafter the villagers

came and they took her father to their house in injured condition, but the

accused persons again started to pelt stones to their house. She added that

her father was taken to Lakhipur hospital by a Maruti Van and she

accompanied her father at that time. She added that on their way to

Lakhipur hospital they also went to Lakhipur P.S. Her further testimony is

that her father succumbed to his injuries at Lakhipur hospital. She was also

cross-examined at length by the defence. But during cross-examination , the

defence could not bring anything from her mouth , which can demolish the

prosecution story of the incident.

Coupled with the oral testimonies of the said eye witnesses , the

evidence of the M.Os are also important.

P.W.6 – Dr.Gunajit Das, the then Asstt. Professor in the Deptt. of

Forensic Medicine, SMCH deposed in this case on 20/4/2010. His testimony

is that on 2/10/04 , he was working as Demonstrator in the Deptt. of

Forensic Medicine, SMCH and on that day he carried out the post mortem

examination of Kamal Uddin Choudhury (deceased), male 60 years of age,

S/O late Arimal Ulla, village-Singerbond part-IV, under Lakhipur P.S on

being produced and identified by Constable NO.177, Ainul Haque in

connection with Lakhipur P.S Case NO. 218/04, U/S

147/148/149/341/324/302 of the IPC. The witness found that the deceased

was wearing a prion shirt, a lungi and a ganji, built average and complexion

dark. Rigor mortis was present in both upper and lower limbs. He found

blood stains in the face and forehead. On examination of the deceased the

witness found the following injures ;

(1) Pressure abrasion size 6 x 2 cm , over the right scapular

region .

(2) Pressure abrasion over the right hip, postriorly placed

size 8 x 2 cm . . ..............p/14

S/C No. 52/09

(14)

(3) Lacerated injury of size 6 x 2 cam placed over the vertex

area exposing the underline bones with cloted blood at the margin.

(4) Haematoma with contuision of the whole area of the

scalp on reflection.

(5) Communicated fracture of both parietal bones with

displacement of fragments

(6) Extra dural haemorrhage with laceration of the parietal

cortex on both sides.

This witness also found rest organs - both externally and internally

healthy, except the larings and trachia which were filled with blood and

forth. In the opinion of said doctor( P.W.6) “ cause of death was coma

resulting from the injuries sustained in the head”. The doctor opined that

all the injuries were anti-mortem and caused by blunt impact and were

homicidal in nature. He proved the Ext.5 as the post mortem report and

Ext.5(1) as his signature. He further proved Ext.1 as the inquest report and

Ext.1(3) as his signature. He also proved Ext.6 as the deadbody challan and

Ext.6(1) as his signature.

During cross examination, the witness stated that he performed

the post mortem examination of the body of deceased Kamal Uddin on police

requisition. During cross-examination he also stated that the injury No. 1,2 &

3 are external injuries and Injury No. 4,5 & 6 are internal injuries. He also

stated that injury Nos. 3,4,5 & 6 were caused by single thrust.

P.W.8-Dr.Nanda Babu Singha, who examined Imran Khan and

Ramij Uddin on that particular night testified that on 1/10/04 at 7 P.M., he

examined the aforesaid two persons. After examination of Imran Khan he

found a small cut injury over his noes and no active bleeding was present.

He also found tenderness over the teeth of the said person. He also found a

small size abrasion over the left side of the forehead on examination of

Ramij Uddin . In his opinion , the injuries sustained by both the victims

were simple and caused by blunt object.

During cross-examination he stated that the injuries were

superficial in nature.

P.W.9- S.I, Nimar Ali Laskar is the I.O of the case and he testified

that on 1/10/04, he was attached to Banskandi PIC as In-charge. He testified

that on that day at about 8.15 PM, he received an information over phone

.....p/15

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(15)

from the O.C., Lakhipur P.S, Sri B.Purkhyastha that one Kamal Uddin of

Dalugram had been killed and the dead body was lying at the Lakhipur PHC.

He testified that he made GD Entry No. 13 dated 1/10/04 to that effect and

proved Ext.7 as the extract copy of the said GD entry. He further testified that

thereafter he proceeded to Lakhipur P.S and on his arrival at the Lakhipur

P.S, the O.C., Lakhipur P.S handed over the death certificate of deceased

Kamal Uddin and also directed him to conduct the investigation. He testified

that he recorded the statements of the witnesses found present at the

Lakhipur P.S and also visited the Lakhipur PHC. His further testimony is

that due to darkness of the night the inquest could not be done on that night

and the dead body was kept at the police custody at Lakhipur PHC. He also

testified that on the next day, he conducted the inquest over the dead body of

the deceased in presence of the witnesses and prepared his report and he

proved Ext.1 as the inquest report . He further added that on that very night

he visited the P.O. and also recorded the statements of the witnesses. He

added that on the next day after inquest over the body of the deceased, he

sent the dead body for post mortem examination to SMCH. He proved Ext.6

as the dead body challan and Ext.6(2) as his signature. He further added that

he collected the post mortem examination report. His testimony also reveals

that during investigation he seized some old pieces of bamboo vide Ext.3

seizure list and proved M.Ext.1 as those split bamboo pieces. He further

added that he also seized some stones vide Ext.4, seizure list and he proved

M.Ext.2 as those stones . He added further that he also seized a white colour

torn punjabi, gangi and a taki having blood stains with mud vide Ext.9,

seizure list and he proved Ext.9(1) as his signature. He proved M.Ext.3 as

those cloths. He further added that the FIR was lodged at Lakhipur P.S and

he proved Ext.2 as the said FIR , he also proved Ext.2(2) is the endorsement

of the O.C., Lakhipur P.S with signature and seal. He further proved Ext.10 as

the sketch map of the P.O. and proved Ext.10(1) as his signature. He stated

that after completion of investigation he submitted charge sheet. He further

proved Ext.8 as the forwarding report of the injured persons.

During cross-examination the said I.O. stated that O.C., Lakhipur

P.S handed over the death certificate of the deceased to him on 1/10/04 at

9.30 P.M.

...............p/16

S/C No. 52/09

(16)

He further added that after receiving the said Death Certificate , he went to

Lakhipur PHC to investigate the case. He added further that on the same

date, the O.C., Lakhipur P.S received the FIR at 10 P.M and further stated

that he examined the witnesses - Sahab Uddin Choudhury, Hafij Uddin and

Imran Khan and Ramij Uddin at 10.30 PM.

POINT NO.I

The first point of attck, raised by the defence is regarding the delay

in lodging the FIR. According to the defence, there was inordinate delay to

make a room for preparation of a concocted story. On the contrary, the

learned Addl. P.P. argued that in the attending circumstances, the delay was

genuine. It appears that the occurrence took place at 1 PM. The FIR was

lodged at 10 PM.

It appears from the testimonies of the witnesses that immediately

after the occurrence, the victim Kamal Uddin was taken to his house. But the

accused persons along with others again assembled and started pelting of

stones and brickbats in the said house of the victim. The inmates of the

house were also threatened not to dare to come out, otherwise they would

face the same consequences. It is the evidence on record that the said

occurrence of stone throwing continued for about 2(two) hours and as a

result of that the victim could not be removed from inside the house. The

aforesaid evidence could not be disproved and I find nothing to disbelieve the

unshaken testimonies of the witnesses in this regard. It is also the evidence

of the prosecution side that at about 3.30 PM , the relations and other

villagers come to their rescue and the accused persons were driven away.

P.W.1 Hafiz Uddin testified that he then talked to one Khetra Singh , the

landlord of the informant over phone to inform the informant (son of the

deceased) about the occurrence. The said evidence received corroboration

from all other witnesses. It is also evident from the testimonies of the

witnesses that thereafter they arranged for a Maruti Van to take the victim to

Lakhipur hospital and started at about 4 PM. The further testimonies of the

witnesses reveal that they met the informant at Phulertal Ferry-ghat at about

5.30 PM and narrated the incident to him. It is also deposed by all the

witnesses that thereafter again they started for Lakhipur. The exact time

when they reached

...............p/17

S/C No. 52/09

(17)

the Lakhipur P.S on way to Lakhipur hospital is not before the court.

However, during cross-examination P.W.1 -Hafiz Uddin testified that they

reached Lakhipur P.S at about 7/8 PM. The aforesaid evidence of P.W.1 gets

corroboration from the requisition, issued by the O.C., Lakhipur P.S to the M

& H.O , Lakhipur for examination of Kamal Uddin Choudhury, Imran Khan

and Ramij Uddin. Ext.8 is the said requisition. It appears from the

endorsement of the doctor that he received the requisition at 7 PM. The

evidence of Dr.Nanda Babu Singh (P.W.8) also discloses that he examined

the victim , Imran Khan and Ramij Uddin at about 7 PM. Thus, it appears

that the P.W.1 and others gave a true picture regarding the taking of victim

to Lakhipur P.S on way to Lakhipur hospital at the earliest possible time.

Now, it is also evident from the testimonies of the witnesses that after going

to the Lakhipur P.S, they were there for only 6/7 minutes and gave a

disclosure of the occurrence and then the requisitions were issued by the

O.C., Lakhipur P.S for taking the victims to Lakhipur P.S. It is evident that

the condition of victim Kamal Uddin was precarious , he was senseless and

there was profuse bleeding. In that condition in all probability, the action

taken by the I.O for sending the victim to the hospital at the first instance

can not be questioned. At the attending circumstance, it was also justified on

the part of the informant, not to spend time for filing of the FIR or giving

statement to the police disclosing the names of the accused. He did the

correct thing to take his father to the hospital at the right earnest. Had it

been the other thing, that would have been against human nature. It is

evident that the O.C., Lakhipur P.S informed the I/C, Banskandi PIC over

phone regarding the death of Kamal Uddin at Lakhipur hospital. The said

information was given at 8.15 PM and accordingly a GD entry was given at

Banskandi PIC. Ext.7(A) is the extract copy of the said GD entry. It appears

from the contents of the information that at that time also the deadbody of

Kamal Uddin was at Lakhipur hospital.

Thus, the P.Ws were right in testifying that at Lakhipur hospital

the death of Kamal Uddin was declared at 9 P.M and I find nothing to

disbelieve the same. It is evident that a constable of Lakhipur P.S

accompanied the victim to identify and it may be that the O.C., Lakhipur

P.S received the information about the death of Kamal Uddin from the said

police

...../18

S/C No. 52/09

(18)

constable. As I noted above, the FIR was lodged at 10 P.M . It is not expected

that immediately after the death of the father, the informant (P.W.5) would

rush to the P.S to lodge the FIR . That one hour delay is not at all fatal at the

attending circumstances. Besides, evidently he was not present at the time

of occurrence. Hence, naturally he took some time to write the FIR after

having discussion with all the eye witnesses.

The defence spent much time during cross-examination of the

P.Ws, why they did not inform the Banskandi PIC which was at a distance of

5/6 K.M from the P.O and why they did not take the victim to Banskandi

hospital . However, during cross-examination of the witnesses, the answer

came although not directly. It came to light that the hospital at Banskandi is

a small one in comparison to the hospital at Lakhipur. It might be right on

the parts of the relation of the victim, to decide to take the victim for better

treatment at Lakhipur, on seeing the precarious condition of the said victim.

Besides, it has also come in the evidence, during cross-examination of P.W.2

that the wife of accused Nizam Uddin and the wife of the then Circle

Inspector of Police, Mr. Abdul Basir were related sister. This might lead the

informant and his relations to move to Lakhipur P.S to lodge the FIR there.

There is also no legal impediment in lodging the FIR at Lakhipur P.S under

whose jurisdiction Banskandi PIC also works.

I, therefore, find that there is no unexplained or inordinate delay

in filing of the FIR in this particular case, which may create a doubt about the

entire prosecution case.

The Ld. Defence counsel relied upon the decision of the Hon'ble

Apex Court of India , in Purna and another Vs State of U.P, reported in AIR

1984 SC 454. The said decision is not applicable in the facts & circumstances

of the presence case in hand. In that particular case there was a delay of long

four days which remain unexplained , which is not the fact of the present

case in hand . The magnitude of the offence was also much less in that case.

It was a case of commission of theft of paddy, whereas in the present case in

hand, the father of the informant was killed and they were prevented to

proceed to the hospital or to the P.S for long period by a mob who pelted

stones. I, therefore, find that the submission made by the defence counsel in

this regard is not at all acceptable .

Now, while challenging the veracity of the evidence of the

......./19

S/C No. 52/09

(19)

prosecution witnesses, Mr. Y.A.Barbhuiya, Mr. A.Biswas, Mr. D. H.

Mazumder, Mr. A.K.Ray, the learned defence counsel appearing for the

different sets of accused argued that all the prosecution witnesses are the

close relations of the deceased. It is also pointed out that there were, as many

as, 40/50 people at the time of alleged occurrence, but the prosecution could

not examine any independent witness. The learned defence counsel for

different sets of accused argued forcefully that this gives rise to serious doubt,

regarding the veracity of the prosecution story.

On the contrary, the learned Addl. P.P. submitted that all the

witnesses examined by the prosecution side are the most natural witnesses,

as they were the eye witnesses and their presence was never challenged by

the defence. He further argued that two of them also sustained injury, at the

time of occurrence. His further argument is that mere non examination of the

independent witnesses can not be a ground for rejecting the prosecution case,

as the present trend of the society is that the independent witnesses are not

coming forward to adduce evidence for the cause of others.

Here, let me pause for a moment. On being summoned by the

Court, Moullana Tamizur Rahman Choudhury has been examined as C.W.1

in this case. He narrated that on the date of the occurrence, it was a Friday

and there were a gathering of 100/150 people in the Mosque to attend the

'Jumma' prayer. He also testified that deceased Kamal Uddin had encroached

a portion of wakf land by giving bamboo fencing . He further testified that

there was a path over the said Wakf land for going to the Mosque and as

Kamal Uddin (deceased ) encroached a portion of the said land, there was

virtually closer of the portion of the path. He further testified that as a result

of the same people were facing much trouble. He added further that said

Kamal Uddin also put fencing encroaching the bank of the pond of the

Mosque. His further revelation is that on the date of occurrence at about

11/11.30 A.M, there was a meeting at the Mosque, which was attended

regarding the aforesaid encroachment. He added that he also attended the

said meeting. His further testimony is that deceased Kamal Uddin was also

present in the said meeting and he was requested to remove the

encroachment to which he did not agree. The witness deposed further that as

he (Kamal Uddin ) disagreed with the proposal of the meeting, a portion of

................./20

S/C No. 52/09

(20)

the villagers left the meeting on being enraged and those people directly

went to remove the encroachment by force. He added that Kamal Uddin, his

brother and his relations also went to resist those villagers and a chaotic

situation was created and a quarrel was picked up in between the parties. He

added that on seeing the condition, they understood that they would not be

able to make the prayer of Juma and then he himself and Maulavi Samsul

Haque Choudhury left for another Mosque to offer the prayer. He added

that he did not witness what had happened thereafter and added that later

on he could come to know that Kamal uddin received injuries in a fighting

and ultimately he succumbed to his injuries. He declined to remember the

faces of those villagers who left the meeting to remove the fencing .

During cross-examination this witness admitted that he is the uncle

of accused Nizam (since deceased) and Jia Uddin and further added that

accused Kamal Uddin had litigation with said accused Nizam Uddin and Jia

Uddin. However, he denied a suggestion from the prosecution that he

narrated a false and concocted story before the court in the interest of

accused Nizam and Jia Uddin . He also denied that other accused persons are

the relations of accused Nizam and Jia Uddin, however, admitted that he

does not know whether they are from the same group of Nizam and Jia

Uddin. He admitted that the other accused persons are from the same

Moholla and same Hamchiya.

Whether, the evidence of the said witness can be believed as a

gospel truth or not is an altogether different question. Defence believed his

story as true and did not challenge the veracity of his evidence. His evidence

specifically discloses that on that day, at about 11/11-30 AM, there was a

meeting at the said Mosque which was attended by about 100/150 people and

the deceased went against the collective sentiment of the villagers, present in

the meeting. Thus, in all probability, it is not expected that the same villagers

would come forward to adduce evidence in this case. Besides, it appears from

the order, dated 5/9/09, passed by the learned Court in this case that the

informant filed an application, supported by affidavit alleging threat, given by

the 4 (four) accused persons. It further appears that the learned Court

accordingly warned the said 4(four) accused. In the aforesaid backdrop, the

.............../21

S/C No. 52/09

(21)

independent witnesses, may perhaps be hesitant to depose on behalf of the

prosecution to avoid animosity. The Hon'ble Supreme Court of India in

Appabhai v. State of Gujarat, reported in MANU/SC/0028, has succinctly

dealt with the other aspects behind non examination of independent

witnesses and observed :-

"It is no doubt true that the

prosecution has not been able to produce any

independent witness to the incident that took

place at the bus stand. There must have been

several of such witnesses. But the prosecution

case cannot be thrown out or doubted on that

ground alone. Experience reminds us that

civilized people are generally

insensitive when a crime is committed even in

their presence. They withdrew both from the

victim and the vigilance. They keep themselves

away from the Court unless it is

inevitable. .......... This kind of apathy of the

general public is indeed unfortunate, but it is

there everywhere whether in village life, towns

or cities. One cannot ignore this handicap with

which the investigating agency has to discharge

its duties. The court, therefore, instead of

doubting the prosecution case for want of

independent witnesses must consider the broad

spectrum of the prosecution version and then

search for the nugget of truth with due regard to

probability, if any, suggested by the accused."

I also find that the witnesses, examined by the prosecution are the

most natural and probable witnesses, as they all accompanied the deceased to

perform the Namaj at the local Mosque. The learned Addl. P.P. rightly

pointed out that their presence was never denied by the defence. Moreover,

PW2 and PW4 sustained injuries in the aforesaid incidence. Merely

because of their

............../22

S/C No. 52/09

(22)

relationship with the deceased, the evidence of these eye witnesses can not

bedisbelieved. Rather, the Hon'ble Supreme Court Of India, in Dalip

Singh and Ors. Vs. State of Punjab, reported in

MANU/SC/0031/1953 observed:-

"Ordinarily, a close relative would be the last

to screen the real culprit and falsely implicate

an innocent person. It is true, when feelings

run high and there is personal cause for

enmity, that here is a tendency to drag in an

innocent person against whom a witness has

a grudge along with the guilty, but foundation

must be laid for such a criticism and the mere

fact of relationship far from being a

foundation is often a sure guarantee of truth.

"

Similar was the view expressed by the Hon'ble Apex Court Of India, in Anil

Phukan Vs. State of Assam, reported in MANU/SC/0228/1993 :

"This witness,

therefore, is a relative of the

deceased and an interested witness.

Of course, mere relationship with

the deceased is no ground to

discard his testimony, if it is

otherwise found to be reliable and

trustworthy. In the normal course

of events, a close relation would be

the last person to spare the real

assailant of his uncle and implicate

a false person.

In view of the settled position of law in this regard, I find no reason

to discard the evidence of the prosecution witnesses, merely because of their

relationship with the deceased.

The learned defence counsel appearing for different sets of accused

also argued that the evidence of the prosecution witnesses suffers from

......./23

S/C No. 52/09

(23)

various discrepancies and infirmities and submits that it suffers from

contradictions and omissions and as such it requires to be disbelieved.

Mr.Laskar, the learned Addl. P.P. on the contrary argued that there is no

significant contradiction or omission for which the entire evidence of the

prosecution side is to be disbelieved.

It is true that the defence, by way of cross examination of the

prosecution witnesses tried to bring some omissions, in comparison to their

previous statements, recorded by the I.O., U/S 161 of the Cr.P.C. It has been

pointed out that the witnesses never stated in their statements, recorded U/S

161 Cr.P.C. that accused Gias dealt a blow at the 'Head' of the deceased. While

confirming the same, the I.O. also stated that the said witnesses specifically

mentioned that the said accused dealt a blow with his stick to the deceased.

Thus, mere non mentioning the parts of the body, where the said accused

dealt with the blow, can not be treated as significant omission. Evidently, the

witnesses failed to attribute any overt act to each of the accused Hafijur,

Abdul Goni, Saidur, Manao, Abdul Jalil, Nizam (since deceased) and Jia,

while giving their statements before the I.O., U/S 161 of the Cr.P.C.

although they tried to attribute the same in their evidence in the Court. But at

the same time, the I.O. also specifically confirmed that the said witnesses

stated before him that accused - Hafijur, Abdul Goni, Saidur and Manao were

there with sticks in their hands. Similarly, the I.O. also confirmed that the

witnesses specifically stated about the presence of the accused -Abdul Jalil,

Nizam (since deceased) and Zia with the other accused persons.

In a similarly situated case, in Appabhai v. State of Gujarat

(supra), the Hon'ble Supreme Court of India observed:-

"We have, however, also

examined the relevant evidence. It is

true that there are many contradictions

in the evidence of Devji. He has not

attributed overt acts to individual

accused in his statement before the

police whereas he has attributed such

overt acts in his evidence

............../2

4

S/C No. 52/09

(24)

before the Court. But that is no ground

to reject his entire testimony.

…..........The Court while appreciating

the evidence must not attach undue

importance to minor discrepancies.

The discrepancies which do not shake

the basic version of the prosecution

case may be discarded."

The Hon'ble Apex Court of India in Sohrab v. State of

Madhya Pradesh, reported in MANU/SC/0254/1972 also observed :-

"This Court has held that falsus in uno

falsus in omnibus is not a sound rule

for the reason that hardly one comes

across a witness whose evidence does

not contain a grain of untruth or at any

rate exaggeration, embroideries or

embellishments. In most cases, the

witnesses when asked about details

venture to give some answer, not

necessarily true or relevant for fear

that their evidence may not be accepted

in respect of the main incident which

they have witnessed but that is not to

say that their evidence as to the salient

features of the case after cautious

scrutiny cannot be considered."

As the exaggerations and embellishments in the evidence of the

prosecution side do not go to the root so as to demolish the entire

prosecution story, I like to ignore the same. Besides, it is also to be kept in

mind that the horror stricken wit-nesses of a dastardly crime might not react

in a normal manner and might not describe the occurrence before the I.O.

with minute details, attributing overt acts to each individual accused, on

that very

.............p/25

S/C No. 52/09

(25)

night, particularly immediately after the victim was declared dead.

Similarly, the evidence was recorded in the Court after long 6(six) years and

that might also result in loss of photogenic memory.

However, as observed by the Hon'ble Apex Court of India, in Anil

Phukan Vs. State of Assam (supra) that the possibility, that the

witnesses may also implicate some innocent person (s) along with the real

assailant, cannot be ruled out. Here, in the present case in hand, the two

accused - Jakir Hussain Choudhury and Abdul Basir were neither named in

the FIR, nor the witnesses stated their names or regarding their involvement

in the commission of the offence, before the I.O. The said fact was confirmed

by the I.O. I, therefore, agree with Mr. D.H. Mazumder, the learned defence

counsel appearing for the said two accused that the said two accused -Jakir

Hussain Choudhury and Abdul Basir need to get the benefit of doubt.

However, as observed by the Hon'ble Apex Court of India, in State of U.P. Vs.

Dun Singh and others, reported in AIR 1997 SC 1654 (relied by the defence)

that for having some inconsequential contradictions or exaggerations in the

testimony of the eye witnesses that should not be a ground to reject their

evidence in its entirety.

POINT NO.II & III:-

I have already discussed the evidence on record in details. The

evidence of the P.Ws clearly reflects that on that particular day, i.e, on

1/10/04, there was the Jumma prayer at the local Mosque and the deceased

Kamal Uddin and his other relatives went to offer prayer. It is also evident

that after offering the prayer, they came out from the Mosque at about 1

PM and while they were proceeding to their house Kamal Uddin was ahead

of them and as soon as he reached near the bamboo groove by the side of the

path about 10/12 persons, including accused Ipachow Mia, Angaoba Mia,

Gias Uddin, Nizam Uddin, Jia Uddin, Abdul Gani, Hafizur Rahman, Saidur

Rahman, Manao @ Haidar , Abdul Jalil, Abdul Basir and Jakir Hussain came

out from behind the bamboo groove with sticks in their hands. C.W.1

Moulana Tamizur Rahman Choudhury adducing evidence in this case

specifically stated that there was a dispute regarding the alleged

encroachment of the Mosque land by deceased Kamal Uddin, which led to

......./26

S/C No. 52/09

(26)

holding of a meeting at the mosque, on that particular day, at about 11/11.30

AM. He further testified that in the said meeting , deceased Kamal Uddin

was asked to remove the encroachment, to which he disagreed and then, on

being enraged, a portion of the villagers left the meeting to remove the

encroachment by force. He added further that deceased Kamal Uddin and

his relations also went there to resist those villagers and there was a quarrel.

His evidence clearly discloses that said occurrence took place before the time

of Jumma, as because he himself left for another mosque to offer Friday

prayer. If, that be so, and if the unshaken evidence of the prosecution side is

taken into consideration, it will be crystal clear that said Kamal Uddin and

others again went back to the Mosque to offer the Friday prayer. The

witnesses also specifically stated that the accused persons did not attend the

prayer. Thus, it is clear that after the quarrel, the accused persons were

awaiting there to take the revenge and they were also armed with sticks with

the intention to assault said Kamal Uddin and immediately on his arrival

after the Jumma prayer, he was attacked by all these accused persons. The

said facts are sufficient to draw the inference that they formed an unlawful

assembly with the common object to assault the deceased and was waiting

there to prosecute their said common object.

Now, the question is whether all the accused persons were the

members of the said unlawful assembly. I have already discarded the

presence of accused Abdul Basir and Jakir Hussain and gave them the benefit

of doubt. While arguing on behalf of accused Gias Uddin, Sri A.Biswas, Ld.

Counsel for the said accused person forcefully argued that he was not

present at the P.O at the relevant point of time, as he was busy in a meeting

at his School. He referred to the evidence of D.W- Manir Uddin Laskar

examined in connection with the present case. Whereas the other accused

persons took the plea of complete denial and also pleaded innocence in their

statements, recorded U/S 313 Cr.P.C., I find that accused Gias Uddin also, in

his statement recorded U/S 313 of the Cr.P.C. took the specific alibi that he

was busy in a meeting at his school, situated at Satkarakandi , at a distance

of 14/15 KM away from the P.O. In support of his said contention, he adduced

the evidence of said Manir Uddin Laskar as D.W.1, the Headmaster cum

Secretary, Satkarakandi High School, Sonai who attended the Court along

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with the proceeding book of their school. D.W.1 Manir Uddin Laskar

testified that on 1/10/04 there was a joint meeting of M.C and staffs in the

school and in the said meeting some of the M.C members, as well as, some

teachers were also present. He added that the meeting started at 11 A.M and

it ended at 2.45 PM, with interval of 'Jumma' prayer. He also testified that in

the said meeting accused Gias Uddin was present. He proved Ext.A as the

Proceeding Book and Ext.A(1) as the relevant proceeding dated 1/10/04. He

further proved Ext.AA(1) as the signature of accused Gias Uddin and Ext.A(2)

as his signature. He further proved Ext.AA as the certified true copy of

Ext.A(1)(proved in original). He added further that said accused Gias Uddin

was all along present in the said meeting along with other teachers till the

end of the meeting. All those exhibits were marked under objection by the

prosecution.

During cross-examination, he denied a suggestion that the alleged

meeting was for Managing Committee only and not a joint meeting of the

M.C Members and staffs. However, the original Proceeding Book of the

Managing Committee of Satkarakandi High School, marked as Ext.A , reflects

something else. It appears that Ext.A(1) is the relevant proceeding of the

meeting of the M.C of Satkarakandi High School, held on 1/10/04 .

Nowhere , at the heading of the said proceeding , there is any mention that it

was a joint meeting of the Managing Committee members and the Staffs. The

D.W1 also admitted that in Ext.A(1), there is specific mention that it was a

meeting of the Managing Committee and there is no mention that it was a

joint meeting of the Managing Committee and staffs.

I have gone carefully through the entire proceeding book , marked

as Ext.A and in all the pages, the proceedings were written in clean hand

writing and keeping the same gap in between the lines. In Ext.A(1)

proceeding also the same gap in between the lines were maintained at the

beginning of the proceeding, but suddenly it is written “M.C members and

staff present” in between the gap. In all other proceeding of different dates,

“Members present in the meeting” were written in a separate line, but here

the same was not maintained. Mr. Manir Uddin Laskar, the Head teacher of

Satkarakandi High School, while deposing as D.W, stated that the said

meeting started at 11 AM and it continued up to 2.45 PM, keeping a break for

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Jumma prayer. But, in the minutes of the proceeding there is no such

mention of a break for jumma prayer. There is no mention when the meeting

was suspended for offering prayer and when it was re-started. It is to be

kept in mind that a person can travel the distance of 14/15 KM within an

hour and if the meeting was suspended at 12 noon, then he could have

reached the P.O at 1 P.M and again could have re joined the meeting before

its end. There is no corroborating evidence of the testimonies of Manir Uddin

Laskar that said Gias Uddin was all along present at Satkarakandi and even

Manir Uddin Laskar never stated, where the said accused was at the time of

break. Another interesting point, which came to my notice is that while

cross-examining the said witness (D.W.1), a question was put before the

witness by the prosecution- whether Inspector of Schools ever inspected the

said Ext.A, proceeding book. But, he specifically stated that the School

Inspector never inspected the Ext.A during inspection. On that day of his

examination , i.e, on 23/7/10, he took back the original proceeding book and

a xerox copy has been submitted after proving it with original. But, after

going back to his working place he took the approval of Inspector of Schools

on 26/7/10 it self , i.e, only after 3 days , that too in a resolution of 5/12/04.

This reflects his guilty mind. The aforesaid facts are sufficient to create a

doubt about the truthfulness of the evidence of the said Manir Uddin

Laskar.

When an accused takes the plea of Alibi , the burden shift to him to

prove the correctness of the said alibi . The Hon'ble Orissa High court in

Adikanda Das Vs. State of Orissa , reported in 1988 CRI.L.J 1884 (relied

upon by the Ld. Defence counsel) , observed that the plea of alibi is to be

proved by preponderance of probabilities and it is not required to be

established beyond reasonable doubt. In this particular case, the accused

person has failed to establish his plea of alibi by preponderance of

probabilities. All the P.Ws specifically adduced the evidence that he was the

master mind behind the attack and he dealt with blows upon the deceased

with stick and the said evidence could not be shaken by the defence. His

name also appeared first in the FIR. During cross-examination, defence

brought it to the record that the witnesses had no enmity with the said

accused person and he resides at a considerable distance from the house of

the deceased and his relation.

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(29)

Thus, there was no reason for falsely implicating him, even at the

first instance , i.e, at the time of filing of the FIR. On the very night, the I.O

recorded the statement of the witnesses and in their statements U/S 161 of

the Cr.P.C also, the witnesses specifically implicated him. On the contrary, I

have already noted that the evidence of D.W.1 does not inspire confidence of

the court. The documentary evidence submitted by the said D.W.1 , also

reflects that on 1/10/04 , there was the meeting of the Managing Committee

only, not the joint meeting of the Managing Committee members and the

staffs. Even, if it is presumed that there was a meeting on that day, then also

it is evident from the testimony of D.W.1 himself that there was a break in

the said meeting for performing Jumma prayer. I like to repeat that within a

period of one hour , the distance of only 14/15 KM can be covered and it

cannot be said that it was improbable on the part of said accused Gias Uddin

to remain present at the P.O at the relevant point of time. Besides, the Ld.

Addl. P.P. rightly pointed out that the accused person was arrested during

investigation of the case and he was sent to jail, but in none of his bail

petitions there is any whisper that the said accused had a plea of alibi of

remaining present in another meeting at a different place. Therefore, there is

reason to doubt the aforesaid plea as after thought. Thus, even if the

preponderance of probabilities is considered as the guiding principle to

establish the plea of alibi, then also the defence has miserably failed to prove

the plea. Rather, the case of the prosecution that he was present and he

himself took part in the alleged occurrence appears to be more probable in

view of the evidence on record.

Mr. Biswas pressed the decisions of the of Hon'ble Apex Court of

India, in State of U.P. Vs. Dun Singh & Ors. , reported in AIR 1997 SC

1654, in Jayantibhai

Bhenkaarbhai Vs State of Gujrat, reported in 2002 CRI.L.J. 4734

and in Murugesan & Ors Vs State through Inspector of Police, reported in

(2012) 10 SCC 383 as well as, the decision of different High Courts, in

support of his contention.

I have gone carefully through the decisions, referred by the Ld.

Counsel for the defence and find that the facts of the said cases are totally

different from the present case in hand. In AIR 1997 SC 1654, there was

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conflicting state of evidence as regard the presence of Harish Chandra, as

such in view of the plea of alibi, the Hon'ble Apex Court of India observed

that a benefit of doubt may be given to the said accused . The same is not the

presence case in hand. Similarly, the facts in 2002 CRI.L.J.4734 is clearly

distinguished from the facts of the present case in hand. In that case, the

accused person was at a distance from the P.O which takes about 8 hours to

reach by bus. As such it was improvable to reach the P.O at the relevant

point of time.

In (2012) 10 SCC 383, the ratio of the decision is quite different. It

was regarding the approach of the Appellate Court, in an appeal against an

acquittal as regard the plea of alibi.

I am , therefore, of the opinion that the said accused Gias Uddin

has failed to establish his plea of alibi in this particular case.

The Ld. Defence counsel further pointed out that no overt act was

attributed to accused Hafijur Rahman, Saidur Rahman, Manow @ Haidar,

Abdul Jalil and Abdul Gani and others in the statements of the witnesses,

recorded by the I.O. It is also submitted by the defence that mere standing

without any overt act does not warrant any conviction. However, I like to

point out that when an unlawful assembly consists of about 10/12 persons or

more accused resorted to violence, it is difficult to say specifically which

overt act was performed by which individual . In this particular case, it is

confirmed by the I.O in his evidence, that the names of all the those accused

persons were mentioned by the witnesses even in their statements,

recorded U/S 161 of the Cr.P.C. The I.O also specifically confirmed that there

are statements to the effect that those accused persons were also at the P.O

with sticks in their hands and that is sufficient to conclude that they shared

the common object to assault the victim Kamal Uddin. It is also confirmed by

the I.O that some of the accused persons pelted stones and brick bats. So, it

cannot be said that there is no evidence regarding any overt act on the part of

the said accused person. In support of their contention they also pressed into

different decision of the Hon'ble Apex Court of India.

In Bachan Singh and another Vs State of Bihar, reported in

(2009)1 SCC (Cri) 307, the case was completely different. It was a case of free

fight in between the two group of persons, unlike this. In that case there were

three deaths from both the groups. In that backdrop , the Hon'ble Apex

Court of

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(31)

India observed that only those who caused the fatal injuries were liable to be

convicted. In the present case in hand , there is no evidence that there was a

fighting in between the two groups . Not even a minor injury was caused to

any of the accused. Thus, the question of free fight does not hold good here.

The decision of Hon'ble Apex Court of India, in Sambhaji Hindurao

Deshmukh & Others Vs. State of Maharashtra, reported in (2009)2

SCC(Crl)464, also came in the back drop that there was virtually no evidence

against the other accused and the vital witnesses turned hostile, only

evidence was against one accused. The facts of the present case in hand is

clearly distinguished from the facts of the said case. In Sunil Vs State of

Maharashtra , reported in (2009) 3 SCC(Crl) 1091, the case was U/S 34 of

the IPC, not U/S 149 of the IPC. , as such the Hon'ble Apex Court of India

observed that no specific overt act was attributed to the appellant and mere

presence of the appellant is not sufficient. But, the present case is U/S 149 of

the IPC, which makes every member of an unlawful assembly at the time of

committing of the offence guilty of the offence. The section creates a

vicarious liability for the unlawful acts committed in prosecution of the

common object by any other member of the assembly. No overt act is

required for each individual member of the assembly.

Unlike the other reported cases, in this case, it is evident that about

10/12 numbers of accused were awaiting near the P.O. with sticks in their

hand, for the return of Kamal Uddin Choudhury and immediately on arrival

of said Kamal Uddin, the said accused persons came out and jumped into

action. I like to repeat that they were armed with sticks etc. and they started

to dealt blows on Kamal Uddin with sticks etc. When his relations came

forward to rescue the said deceased, they were also prevented and some of

the members of the said unlawful assembly started pelting of stones and

brickbats. As a result of that, Ramij Uddin and Imran Khan received injuries

on their persons.

Thus, there is no room for doubt that the accused persons by

forming an unlawful assembly resorted to violence with arms in their hand

in prosecution of their common object. It is further evidence that once again

those accused persons re-assembled after the victim was taken to the house

to prevent him to be taken to the hospital and resorted violence by pelting

of

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stones and brickbats with oral threat, which continued for about two hours.

These two points are decided accordingly.

POINT NO.IV:-

To establish an offence, punishable U/S 302 of the IPC, the

following ingredients are to be proved:

(i)That the death of some human being was caused;

(ii)That such death was caused by the accusedor was the

consequence of the act of the accused;

(iii)That the accused did so

(a) with the intention of causing death, or

(b) that the accused knew that his act was likely to cause

death; or

© the injury (inflicted or caused) by the accused was

sufficient in the ordinary course of nature to cause death.

From the evidence of all the P.Ws , it appears that victim Kamal Uddin died

on 1/10/04 due to injuries received by him. He was declared dead when he

was taken to Lakhipur Hospital. Before that he was unconscious for a long

time. It is also evident that accused Ipachaw Mia first gave a blow on the

head of the deceased Kamal Uddin and thereafter Angaoba Mia(absconder)

and accused Gias Uddin dealt with blows with sticks on the deceased Kamal

Uddin. The prosecution witnesses further stated that the other accused

persons also took part in the assault of deceased Kamal Uddin. It is also

evident that as a result of inflicting of such injuries the victim immediately

fell down. The Inquest Report (Ext.1) reflects that there was three cut

injuries on the head of the deceased. There was an injury mark at the back

and at his hand.

PW6 Dr.Gunajit Das specifically mentioned that there were, as

many as, 6(six) injuries- Injury Nos. 1,2 and 3 are external injuries and

Injury Nos 4,5 and 6 are internal injuries. According to him, all the injuries

were ante mortem, caused by blunt impact and homicidal in nature. Save and

except, the Injury No. 2 all the injuries were on the head. The said doctor,

during cross examination, specifically stated that the external injury No.3

and the internal Injury Nos.4,5 and 6 were caused by single thrust. The

learned defence counsel argued that there was a single thrust on the

Head of the

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(33)

deceased. It is also argued that according to the witnesses, the absconding

accused Angaoba dealt with the first blow at the head of the deceased, and as

such Gias Uddin and Ipachow can not be implicated for giving the fatal

blow. The learned defence counsel also submitted that to implicate the said

two accused falsely, their names were mentioned. However, with all respect

to the learned counsel appearing for the accused persons, I like to point out

that the doctor who performed the P.M. examination of the deceased never

stated so. His evidence was that injury Nos. 3,4,5 and 6 were caused by single

thrust. If that be so, there must be two other thrusts- one at the Head and the

other at the right Hip and I find nothing to disbelieve the ocular evidence of

the prosecution side in this regard. Merely because the witnesses failed to

have a photogenic memory which fatal blow was given by whom, particularly

in a scenario when a large number of accused assaulted a single person,

causing his death, the same can not be disbelieved. As all the injuries were

ante mortem and homicidal in nature, it is inconsequential which fatal blow

was given by whom. The nature of injuries clearly reflects that the accused

persons dealt with blows at the head of the deceased with the sole intention

of causing his death. The way the other accused persons gave aid to the said

three accused persons by covering the deceased with sticks in their hand,

pelted stones and brickbats to prevent to take the victim to hospital at the

earliest possible time, clearly indicates that they had also shared the

common object to cause the death of deceased Kamal Uddin. The offence

does not fall within any of the Exceptions , described in Sec.300 of the IPC.

Thus, in my considered opinion, the prosecution has proved all the

ingredients of Sec. 302 of the IPC.

I find that there are exaggeration regarding giving of lathi blows to

PW2 Imran Khan. On the contrary, there is sufficient evidence that the said

victim Imran Khan and Ramiz Uddin received injuries, during pelting of

stones and brickbats. Thus the ingredients of voluntarily causing of hurt is

not proved. Rather, an offence U/S 337 of the IPC has been made out.

Accordingly, the point No.IV is decided.

In view of the discussion made above, I am of the confident opinion

that the the prosecution has established the guilt of the 7 accused persons,

namely, Abdul Gani, Hafizur Rahman, Ipachow Mia, Gias Uddin,

Saidur

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S/C No. 52/09

(34)

Rahman, Abdul Jalil, Zia Uddin Choudhury, U/S 148/149/337/302 of the

IPC removing all shadow of doubt . Although no charge was framed U/S 337

of the IPC, since it is a minor offence, by invoking the provision of Sec.222 of

the Cr.P.C. The accused persons can be convicted under the said section of

law. Moreover, the accused persons will in no way be prejudiced, as the

witnesses were sufficiently cross-examined in this regard. The said accused

persons are not separately convicted U/S 147 of the IPC. However, there

remains many rooms for doubt about the actual involvement of accused

Abdul Basir Choudhury and accused Jakir Hussain Choudhury and they are

entitled to get the benefit of doubt.

In the result , accused Abdul Gani, Hafizur Rahman, Ipachow

Mia, Gias Uddin, Saidur Rahman, Abdul Jalil, Zia Uddin Choudhury, are

held guilty of offence, punishable U/S 148/149/337/302 of the IPC and

accordingly they are convicted under the said sections of law.

Accused Abdul Basir Choudhury and accused Jakir Hussain

Choudhury are held not guilty of offence, punishable U/S

147/148/149/323/302 of the IPC and they are acquitted on benefit of doubt.

The bail bonds of the said two accused persons shall remain in

force for another 6(six) months U/S 437A of the IPC.

I heard the accused/convicts on the point of sentence and recorded

their statements in separate sheets. All the convicts sought clemency,

showing the reasons, noted in their statements. I heard the Ld. Defence

counsel, appearing for the accused/convicts. In the facts and circumstances

of the present case, it can be safely held that the present case is not one of the

rarest of rare cases. Hence, keeping in view of the submissions of the

individual convict, I find that the nature of justice will be appropriately met,

if the convicts are sentenced to imprisonment for life with fine for

commission of the offence of murder. Consequently, all the 7 (seven) convicts

are sentenced to rigorous imprisonment for 1 year each U/S 148 of the IPC, to

rigorous imprisonment for 3 months each U/S 337/149 of the IPC and to

imprisonment for life with fine of Rs. 2,000/-each, i.d., to Rigorous

U/S 302/149 of IPC.Imprisonment for another 6 months each /. All the sentences of imprisonmentwill

run concurrently and the period of imprisonment already undergone by the

convicts will be set off. The amount of fine, if realized, will be applied

in

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S/C No. 52/09

(35)

payment of compensation to the family of the deceased. The deceased was of

60 years of age at the time of death and hence no order is passed U/S 357A of

the Cr.P.C.

Let , a free copy of this judgment be given to the accused persons.

Given under my hand and the seal of this court on this the 21st day

of Aug/2013.

(S.P.Moitra) Addl.Sessions Judge,

Cachar,Silchar.Dictated & corrected by me ;

Addl.Sessions Judge, Cachar,Silchar.

Transcribed by -Sahid Ahmed Laskar.

....................p/36

(36)

1.Prosecution Witness:-

P.W.1-Hafiz UddinP.W.2-Imran KhanP.W.3-Sanachowba MiaP.W.4-Ramiz Uddin ChoudhuryP.W.5-Sahab Uddin ChoudhuryP.W.6-Dr.Gunajit Das.P.W.7-Musstt.Mazida Begum.P.W.8-Dr.Nanda Babu SinghP.W.9-Nimar Ali Laskar

2.Prosecution exhibits:-Ext.1-Inquest report.Ext.2-F.I.R.Ext.3-Seizure list.Ext.4-Seizure list.Ext.5:-P.M Report.Ext.6-Dead body challan.Ext.7-G.D entry NO.13 dated 1.10.04 to 30.6.10.Ext.7(A)-Certified copy of GD entry No. 13 dated 1.10.04-30.6.10.Ext.8-Forwarding report..Ext.9-Forwarding report of injured person .Ext.10-Sketch map .3.Defence witness:-D.W.1-Manir Uddin Laskar.

4. Defence Exhibit:-Ext.A-Proceeding BookExt.A(1)-Proceeding dated 1.10.04.Ext.A(2)-Signature of Manir Uddin Laskar.Ext.AA-Certified true copy of Ext.A(1).Ext.AA(1)-Signature of accused Gias Uddin.

5. Court witness:-C.W-Maulana Tamizur Rahman Choudhury.

(S.P.Moitra) Addl.Sessions Judge,

Cachar,Silchar.Dictated & corrected by me ;

Addl.Sessions Judge, Cachar,Silchar.