AMIR HUSSAIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) In Sessions Case No.3 of 1999 arising out of GR Case No.563/97, Kokrajhar Police submitted charge sheet against 4 accused persons and the Ad-hoc Addl Sessions Judge, Kokrajhar, on committal of the case, framed charge under section 302/34 and also under section 201 IPC against the appellants Md.Samirul Islam, Md.Hussain Ali, Md.Mojibour Rahman and Amir Hussain. On conclusion of the trial, accused Mojibour Rahman was acquitted and the other three appellants before us were convicted under section 302/34 and sentenced to rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each, in default simple imprisonment for two years. They were also convicted under section 201/34 IPC and sentenced to rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each, in default six months simple imprisonment. Both the sentences were directed to run concurrently. Hence the present appeal.

(2.) The prosecution case in brief is that on 17.7.97 (Thursday) the deceased Opial Sk went to the house of Md Amir Ali PW 5 and slept at his place on the plea that he is required to go out early in the morning for picnic. At about 4 AM in the morning, said Opial Sk left the house of PW 5 and thereafter he was found missing. On next Saturday ie on 19.7.97 the dead body of Opial Sk was found floating in a ditch where from it was recovered and the FIR was lodged by the elder brother of the deceased stating that some wicked persons have killed his brother and the informant suspected one Saber Ali and Jabed Ali's party. The dead body was sent for post-mortem which was conducted by Dr. Amalendu Kar, PW 11 who found as follows: "Body was putrefied with post-mortem elisters all over the body. Rigor-mortis passed off in lotu upper and lower limbs. At transverse continue ligature mark around the lower part of the neck present breadth about 1" in size. Abdominal well putrefied Right lung : Congested Left lung : Congested. Heart : Congested Pericardium : Congested. Blood vessels : Congested. Other organs : Healthy. Spleen : Congested. Liver : Congested. Opinion : In my opinion, cause of death is due to asphyxia as a result of strangulation which is ante-mortem and homicidal by nature."

(3.) In this case, we find that the death of the deceased as such is not in dispute. All the witnesses saw the dead body floating in the pond and the doctor also found ligature mark on the neck, which was homicidal in nature. There is no eye witness to the occurrence as such except one Noor Mahamud, whose evidence has been referred to at a latter stage and the trial Court has relied on the circumstantial evidence concurring with the evidence of the alleged eye witness Noor Mahamud PW 12 (page 23 of the judgment). The circumstances on which the prosecution has relied are listed by the trial Court as below : "(1) Accused Amir Hussain was last seen together with deceased Opial Sk. (2) Accused persons fled away from their homes after the occurrence. (3) Accused Amir Hussain demonstrated how they murdered Opial Sk in the house of Saber Ali Master. (4) Accused Amir Hussain confessed before the villagers that he along with other accused persons caused death of Opial Sk. (5) Accused Amir Hussain told PW 1 and others that after murder of Opial Sk they concealed the dead body of Opial in jute cultivation and then it was shifted to the ditch of Amir Ali's compound. (6) Dead body of Opial was recovered from the ditch on Saturday morning. (7) The MO (PW 11) who conducted post-mortem on the dead body of Opial Sk opined that the death was due to asphyxia as a result of strangulation."