ZIL HAQUE @ ZEL Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order, dated 30/9/2010, passed by the learned Additional Sessions Judge (FTC), Bongaigaon, in Sessions Case No. 30(A)/2007. By the impugned judgment and order, the learned Sessions Judge, convicted the appellants, under sections 302/201 read with section 34 Indian Penal Code (hereinafter referred to as the `IPC') and sentenced them to suffer imprisonment for life and pay fine of Rs. 10,000/- each in default suffer rigorous imprisonment for another period of six months for their conviction under section 302 IPC. The appellants have also been sentenced to suffer rigorous imprisonment for one year and pay fine of Rs. 5,000/- each in default suffer rigorous imprisonment for another period of three months for their conviction under section 201 IPC. Aggrieved by the said conviction and sentences, the convicted persons, as appellants, have come up with this appeal. We have heard Mr. HRA Choudhury, learned Sr. Counsel for the petitioner assisted by Mr. IA Hazarika, learned counsel appearing for the appellants and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing for the State.

(2.) THE prosecution case, in brief, as revealed at the trial, may be stated as follows. THEre was a dispute between the appellant Mr. Zil Haque and Md. Tazem Ali (hereinafter referred to as the deceased) regarding enjoyment of "Aai Nadi Beel" (a river fishery). On 23/5/2004, at about 9 P.M. Md. Najmul Haque (PW7) a co- villager, visited the deceased's house and both of them went out, but the deceased did not return home. On the next morning, marks of dragging a person from the house of the appellants namely Innus Ali Munchi and Abul Kalam, upto the river was noticed. THE people of the village, suspecting murder of the deceased and concealment of the dead body took steps to fish out the dead body from the river water but the dead body could not be recovered on the said date. Accordingly, an FIR was lodged by Amzad Ali (PW1), who is the brother of the deceased. On the next morning i.e. on 25/5/2004, the dead body of the deceased was found floating in the beel i.e. the place where search was made on the previous day and information being lodged, Police arrived there and recovered the dead body. During the course of investigation, Police visited the place of occurrence, recovered the dead body of the deceased, prepared the inquest report in respect of the dead body (Exhibit 2), prepared a sketch map, forwarded the dead body for post mortem examination and seized a "Punjabi Shirt" from the house of the appellant Innus Ali Munchi, vide seizure list (Exhibit-7). Police arrested all the accused persons and forwarded them to the Court. At the close of investigation, Police submitted charge sheet under sections 302/201/34 IPC against the accused persons. THE offence being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate (M), North Salmara, Abhayapuri, committed the case to the Court of Sessions and the learned Sessions Judge, Bongaigaon, framed charges, under sections 302/201 read with section 34 IPC, against the appellants. THE charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.

(3.) HAVING heard the learned counsel for both the parties and considering the materials on record, it is found that the dead body of the deceased was found floating, on 25/5/2004, in the Aai river beel. The inquest report (Exhbit-2) prepared by the Investigating Officer, after recovery of the dead body from the beel (fishery), reveals that the neck was found in swollen condition with two nail marks and there was bleeding from the nostrils. The Medical Officer (PW16), who performed the autopsy in respect of the dead body of the deceased did not find any mark of ligature on the neck or injury in the mouth or on other parts of the body. He opined that death was caused due to ante mortem drowning. In his cross examination, made on behalf of the defence, the Medical Officer stated that he did not find any injury, even laceration, abrasion, incise, contusion. He also opined that if any person is dragged, there must be some laceration or abrasion on the body of the person, who is so dragged and, in that case, skin deep injury would be available. The above Medical Evidence rules out the possibility of dragging the deceased after causing his death. The absence of any injury including superficial or laceration or abrasion also suggests that no force was applied to the deceased either before or after his death. According to the said Medical Officer, death was caused due to ante mortem drowning. The expression "ante mortem drowning" used by the Medical Officer rules out the possibility of strangulation or appliance of any force in causing the death. The said medical evidence clearly indicates that the death of the deceased was due to drowning. Therefore, the medical evidence does not support the prosecution version of homicidal death, at the hands of the appellant. Though the prosecution witnesses stated that, on the next morning, they had seen dragging marks from the house of Innus Ali Munchi and Abul Kalam to the beel, absence of any injury, on the body of the deceased, does not support the said prosecution version that the deceased was dragged from the house of the appellants to the river for its concealment. That apart, if any force was applied to the deceased, in causing his death then, certainly, some marks of injury or evidence of applying force would have been available in the body of the deceased. The medical evidence, given by PW6, indicates absence of any such injury marks. Therefore, it cannot be held that the death of the deceased was caused by applying any force.