IN THE GAUHATI HIGH COURT (THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Criminal Appeal (J) No. 119 of 2015 Md. Jamaluddin & Another -Versus- The State of Assam & Another Appellants Respondents -BEFORE- HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE N. CHAUDHURY Advocate for the appellant : Advocate for the Respondent: Mr. RM Choudhury, Amicus Curiae Mr. K Konwar, Additional Public Prosecutor, Assam Date of hearing & Judgment: 02.11.2016 JUDGMENT & ORDER (N. Chaudhury, J) Appellants Md. Jamaluddin and Abdul Khalique Laskar have been convicted under section 302 of the IPC in Sessions Case No. 104/2010 of the Court of learned Sessions Judge (FTC), Cachar at Silchar. They have been sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 50,000/- each, in default, rigorous imprisonment for 1 year each. By the same judgment, two other accused persons, namely, Hussain Ahmed Laskar and Abdul Page 1 of 7
Sukkur have been acquitted. However, accused Samsuddin absconded during trial. 2. The prosecution story is that one Jamirun Nessa lodged and ejahar with Dholai Police Station on 30.01.2006 at around 8 P.M. informing that at around 7 A.M. on the same day accused Jamal came to her house and enquired as to where her husband would go for collecting bamboo leaves that day. Her husband replied that he would be going to the near jungle to cut bamboo leaves. Jamaluddin left but at around 9 A.M. accused Hasan, Khalik and Islam came and enquired about her husband. At around 12 O clock Hasan, Khalik, Islam, Sukkur Ali, Janab and Samsumia armed with dao came to their house and offered Rs. 10/- to her daughter for taking them to the place in the jungle where her husband had gone for collecting bamboo leaves and fire wood. At around 12.30 P.M. the informant heard hue and cry raised by her daughter Dilara Begum. She came from the jungle running and informed that the aforesaid accused persons killed her husband Kala Mia and son Faiz Uddin. Dholai Police Station Case No. 19/2006 under sections 147/ 148/ 149/ 302 of the IPC was accordingly registered and investigation started. Police recovered the dead bodies, held inquest and post mortem and after recording statements of witnesses submitted charge sheet on 26.09.2006 against as many as 6 (six) accused persons including the present appellants. The learned Magistrate committed the case to the Sessions leading to registration of Sessions Case No. 104/2010. Charges were framed under sections 147/ 148/ 149/ 302 of the IPC against 5 (five) accused persons out of the aforesaid 6 accused persons as one of them was juvenile. All the 5 accused persons pleaded not guilty and claimed to be tried. Page 2 of 7
3. Prosecution examined 9 witnesses in all and one court witness was also examined. Having considered the evidence on record, the learned Sessions Judge convicted the two appellants under section 302 of the IPC whereas acquitted accused Hussain Ahmed Laskar and Abdul Sukkur vide judgment and order dated 21.09.2015. This judgment and order has been called in question in the present appeal. 4. We have heard Mr. RM Choudhury, learned Amicus Curiae on behalf of the appellants and Mr. K Konwar, learned Additional Public Prosecutor. We have also perused the records. 5. PW 1, Dilara Begum, was about 22 years of age as on the date of deposition on 21.07.2010. She stated that the occurrence had taken place about 5 years back. Accused Khalique and Samsul came to their house on the date of occurrence and asked as to where her father and brother had gone for cutting bamboo in the nearest jungle. They wanted her to accompany them to the place to which she initially denied but thereafter they gave her a ten rupee note for which she agreed. She took them to the place where her father Kala Mia and brother Faizuddin were cutting bamboos. She found accused Jamal and Islam were already there hidden in the jungle. All of them started altercation with Kala Mia regarding landed properties. Samsul gave a blow on the right hand of her father by dao then other accused persons also started giving dao blow on her father and brother. Out of fear she raised hue and cry and came back home running and narrated the incident to her mother Jamirun Nessa. Her mother raised alarm and along with other villagers went to the place of occurrence. She also accompanied her mother. Thereafter FIR was lodged with Dholai Police Page 3 of 7
Station. Her statement was also recorded by Magistrate under section 164 of the Code of Criminal Procedure. Exhibit 1 is her statement which was recorded on 21.07.2010. Even at that time she had disclosed that Abdul, Khalique, Hasan and Islam cut her father with dao while Khalique, Hasan, Islam, Jamal, Sukkur and Samsul cut her brother Faiz Uddin killing both of them. 6. PW 2, Subhas Barbhuiya, is a neighbour of the victim. He was VDP Secretary at the relevant time. He heard that Kala Mia and Faiz Uddin were killed. He accompanied police to the place of occurrence and saw the dead bodies. He was declared hostile by the prosecution. 7. PW 3, Islam Uddin Borbhuiya, is also a neighbour. He saw the dead bodies of Kala Mia and Faiz Uddin but he turned hostile. 8. PW 4, Manir Uddin Laskar, is another neighbour of the victim. At around 1.30 P.M. on the date of occurrence he heard PW 2, Jamirun Nessa, shouting from the road in front of the house that Abdul, Khalique, Hasan, Sukkur, Jamal Uddin and Samsuddin had murdered Kala Mia and Faiz Uddin in jungle. He advised her to go to police and then proceeded to the place of occurrence. He found Dilara Begum at the place of occurrence and saw the dead bodies of Kala Mia and Faiz Uddin. He was witnessed to inquest report Exhibits 4 and 5. 9. PW 5, Hazi Makmad Ali, was also declared hostile. 10. PW 6, Jamirun Nessa, is the wife of deceased Kala Mia Laskar and mother of deceased Faiz Uddin. She stated that on the date of occurrence Jamal initially came to their house for taking milk. At about 10/11 A.M., Khalique, Jamal, Samsul and Islam came and asked as to whereabouts of her husband and the son. They paid Rs. 10/- to her daughter Dilara Begum and persuaded her to Page 4 of 7
accompany them to the place where the two victims were cutting bamboos. After an hour, her daughter Dilara came running and shouting that the accused persons had killed her husband and the son. She thereafter proceeded to the place of occurrence along with other people and found them in seriously injured condition. Having seen them, accused persons fled away. Then she came to Dholai Police Station and police accompanied her to the place of occurrence. The injured persons were brought but in the mean time they had died. According to her, Khalique had taken loan of Rs. 32,000/- from her husband but did not return. There was also dispute in regard to land between her husband and Khalique. 11. PWs 7 and 8 are police officials who had held investigation into the case and produced records. 12. PW 9, Dr. Gunajit Das, held post mortem over the dead bodies and found as many as 5 injuries on the person of both the victims. All these 5 injuries were incised wounds caused by sharp weapons which are ante-mortem and homicidal in nature. He proved the post mortem reports under his signature. 13. One Nilendu Malakar, an Assistant Sub-Inspector of Police, was examined as court witness who produced Exhibits A, B, C and D documents. Exhibit C is in regard to proclamation as accused Samsuddin had absconded in the mean time. All the accused persons were thereafter examined under section 313 of the Code of Criminal Procedure when they denied to have committed any offence. 14. From the perusal of the aforesaid evidence on record it is clear that PW 1, Dilara Begum was a major as on the date of deposition. She was of the age of understanding at the time the occurrence had taken place. She was present Page 5 of 7
when the occurrence had taken place. Rather, it is she who had taken accused Khalique and Samsul to the place of occurrence whereas accused Jamal and Islam were already hiding in the jungle. She saw accused Jamal, Islam, Samsul and Khalique assaulting her father Kala Mia and brother Faiz Uddin. One hand of Kala Mia was severed thereby. Both of them sustained 5 incised injuries which, according to the doctor, are ante-mortem and homicidal in nature. Thus, PW 1, Dilara Begum, is an eye witness. Now the question is whether her testimony is trustworthy. To test the veracity over credibility, we have carefully examined the depositions of PW 4 and PW 6 along with the medical evidence adduced by PW 9. PW 4 being a neighbour materially corroborated PW 1 to the extent that she was at the place of occurrence and that also at the very first occasion, after the incident, the PW 6 had named all the accused persons. PW 1 had made statement before Magistrate under section 164 of the Code of Criminal Procedure vide Exhibit 1 which materially corroborates her subsequent deposition given after 5 years in course of trial. 15. If the informant had falsely implicated the accused persons in that event, it was possible on her part to say that even she was present at the place of occurrence. But she did not do so. She firmly stated that PW 1 was paid Rs. 10/- by the accused persons for showing the place where the victims were working. She took them to the place of occurrence and witnessed the incident. The conduct of PW 1 and PW 6 appear to be normal and in conformity with the usual human behaviour. Besides, victim Kala Mia was father of PW 1 and husband of PW 6. Victim Faiz Uddin was brother of PW 1 and son of PW 6. So there is no reason as to why these two witnesses would tell lie to shield the real perpetrators Page 6 of 7
of the crime. They lost their nearest persons and so it is natural that they would desire the culprits to be punished. Since presence of the PW 1 at the place of occurrence at relevant time has been established beyond reasonable doubt, we do not find any reason to doubt her credibility, more particularly, when her own father and brother were killed in the ghastly incident. It is established law that testimony of a sole credible witness can be the basis of conviction. If one evidence is trustworthy, then multiplicity of evidence is not necessary. Having considered the nature of evidence adduced by the prosecution, we are of the opinion that learned Sessions Judge has not committed any error in convicting the two appellants under section 302 of the IPC and sentencing them accordingly. 16. The appeal is devoid of any merit. It is accordingly dismissed. The impugned conviction and sentence are accordingly upheld. 17. Send down the lower court records. JUDGE CHIEF JUSTICE BiswaS Page 7 of 7