MD USEN ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This criminal appeal is so preferred against the judgment of conviction and sentence so passsed by the learned Additional Sessions Judge, Dhubri dated 9.9.94 in sessions case No. 26/93 by virtue of which after hearing the above named accused/appellants guilty of committing offence coming under the purview of sections 302/201 read with section 34 of the IPC, they have been convicted therein and sentenced to undergo R.I. for life and also aa fine of Rs 500/- for their committing offences under sections 302/34 of the IPC and are also sentenced to R.I. for a period of 3 years with a find of Rs 500/- each under section 201 read with section 34 of the I.P.C. in case of default in making payment of fine the appellants have been sentenced to undergo 1 month imprisonment on each count. However, both the sentences are directed to run concurrently. 2) Md. Derujuddin Sheikh, the fattier of Md. Awal Mazid (since deceased) has given the ejahar before the Officer-in-Charge Rupsi Police Out Post on 3.7.89 relating to his son Md. Awal Mazid found missing from 1.7.89 but after thorough inquiry, coming to inow about Awal Mazid being way-laid by the accused/appellants and Manjad Ali towards northeast of all the 4 accused persons i.e. 3 accused/appellants and Manjad Ali who figured as accused in the said ejahar killed him and as far as Manjad Ali is concerned, his trial was separated because of his absconding althrough. The further case of the prosecution as coming from the mouth of Derajuddin Sheikh the first informant (not examined in course of trial) is that dead body of his son Awal Mazid was so found floating in the river being put in a sack near Rupsi Goalgoan and the dead body being recovered by the police and the same was identified to be the dead body of Awal Mazid. At the foot of his ejahar there is also mention of one Ejahar being lodged on 3.7.89 also but in course of trial there is no trace of the another ejahar dated 3.7.89 being proved. It further transpires that A.S.I, of Police, Rupsi P.S. Shri S. Rout by name after receiving the ejahar given by Derajuddin Sheikh forwarded the same to the Officer-in-Charge, Golakganj P.S. for favour of registering a case.

(2.) Shri R.S. Rout in course of trial as P.W.-12 has also mentioned therein with regard to his already taking up pre-steps in connection with the incident prior to the ejahar so given by Derajuddin Sheikh. After registration of the case, at the police station it further transpires that after completion of investigation the chargesheet was so submitted by the investigating officer as particularly coming from the mouth of Shri Mahesh Deka another police personnel so examined in course of trial us P.W.-10 who has specifically stated that he submitted chargesheet under sections 302/201 read with section 34 of the IPC against the 4 accused persons detailed above. Cognizance of the offence was thus so taken is G.R. Case No. 140/89 and the case record was so committed to the court of Sessions for trial relating to the accused/appellants when charge was so framed against them on 1.12.93 by the learned Additional Sessions Judge, Dhubri under 2 heads i.e. under section 302/34 and U/S 201/34 IPC of their intentionally causing the death of Awal Mazid and also concealing the dead body as to screen themselves from the offence so committed. The accused/appellants pleaded not guilty and claims to be tried. In course of trial it further transpires that altogether 12 prosecution witnessess are examined out of whom P.W.-10 and 12 are police personnel. P.W-11 Shri Radhaballav Saha is the scribe who claims to have written the ejahar so given by Derajuddin Sheikh. The ejahar is marked as Ext. 5.

(3.) The case of the prosecution which emerges after the completion of investigation is that the occurrence so took place on 1.7.89 as coming from the mouth of P.W. 12. There was G.D. Entry No. 96 on 3.7.89 relating to the occurrence on the basis of which P.W.-12 started investigation and the dead body was so recovered from the river being kept in a gunny bag on 5.7.89 and even there was ejahar of Md. Derajuddin Sheikh which is marked as Ext. 5, It is also the case of title prosecution that one boat was also utilised for taking the dead body for concealment and the owner of the boat Md. Omar Ali has been examined as P.W.-6. P.W.-l Musstt. Jarina Bibi is declared hostile. P.W.-2 Soibor Ali and P.W.-3 Kobad Ali and other witnesses were produced as witnesses on the point of circumstantial evidence and P.Ws 2 and 3's statements are also recorded under section 164 of the Cr.P.C. before the Judicial Magistrate. P.W.-5 Md. AKhtar Ali claims himself to be an eye witness to have seen the accused/appellants committing the offence and also committing overtacts as given by him in his statement recorded before the Judicial Magistrate under section 164 of the Cr.P.C. Statements of P.W. 2, 3 and 5 so recorded under section 164 of the Cr.P.C. are marked as Exts. 3, 2 and 4 respectively. The Judicial Magistrate who recorded the evidence of PW-2, 3 and 5 is also examined in the course of trial and he figured as P.W. 9 Md. Abdur Rahim by name. Md. Sahar All is the seizuralist witness. Sy. Md. Imadullah is the Medical Expert who conducted postmortem examination on the dead body of the de- ceased. As far as P.W.-4 Shri Jitemdra Mohan Paul is concerned, he specifically stated that he knew nothing aboiat the occurrence. Certain articles were also seized in course of investigation and they are marked as Exts. 6 and 7. Inquest report is marked as Ext. 8. After evaluating the evidence so available on the record, the learned Sessions Judg has thus come to the conclusion particularly banking much on the evidence of P.W.-5 that the accused/appellants have committed offences coming unde;r the purview of section 302/201 IPC which was so committed in furtherance of the common intention and thus they have been convicted and sentenced as detailed therein. Being aggrieved, by the said judgment of conviction and sentence so passed by the learned Sessions Judge dated 9.9.94, this criminal appeal is thus so preferred.