ISMAIL ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) The occurrence, which saw the death of Ramjan had taken place in the morning hours of 22nd January, 1973. The prosecution case is that on that day deceased Ramjan was warming himself by the side of fire in the court-yard of P.W. 2 Nur Mohammad, P.W. 6 Abdul Hamid was also there, so too Nur Mohammad. They were then joined by accused Ismail and Ibrahim, who tendered their apology to Ramjan for some past incidence. Ramjan replied that as the matter bad been referred to Mel he was unable to accept the apology. At this Ramjan was attacked by Ibrahim and Ismail with daggers, which they bad carried. On receipt of the injuries, Ramjan fell down in the courtyard but subsequently got up and ran inside the house. He was chased and according to the prosccution be was assaulted inside the house also by the aforesaid two accused, who fled away subsequently. On hearing alarm, some persons came and first aid was given to Ramjan, who was in a speaking condition when villagers came to the spot. By that time Nur Mohammed in the company of D.W. 1 Sukkur Ali bad gone out to lodge ejahar on receipt of which police came to the place of occurrence. Before that P.W. 3 Taher Ali had come to the place of occurrence and according to him a dying declaration of the deceased was recorded by one Akhtar Hussain. After the 1.0. came to the scene of the crime, another dying declaration was recorded by him, who sent the injured to Moirabari State Dispensary for treatment. At that dispensary third dying declaration was recorded by P.W. 5. On completion of the investigation, both Ismail and Ibrahim were sent up for trial. They were charged under sections 302/34 I.P.C. for having caused the death of Ramjan in furtherance of their common intention. As Ibrahim Ali absconded, the trial proceeded against appellant Ismail only. In the course of the trial the prosecution examined 7 witnesses. The learned trial court on being satisfied about the guilt of the accused convicted him under sections 302/34 and keeping in view the young age of the accused and the fact that he was the only earning member of his family sentenced him to rigorous imprisonment for life. Accused Ismail had preferred this appeal.

(2.) A perusal of the impugned judgment and material on record shows that the conviction is founded on the evidence of P.W. 2 and the dying declarations of the deceased. Shri Choudhury has urged that the evidence of P.W. 2 that he had been that part of the occurrence which had taken place in his courtyard is not believable inasmuch as in the ejahar lodged by this witness himself at the outpost no name of the assailants had been given out. As the case of the appellant relating to non-worthiness of the evidence of P. W. 2 hinges on this part of the submission of Shri Choudhury the evidence relating to the filing of ejahar at the Mocrabari Outpost has to be noted in some detail.

(3.) The evidence of P.W. 2 who is the informant, is that after going alongwith Sukkur Ali to the outpost be bad lodged an ejahar, which was written by him. In examination-in chief be testified that Ext. 1 was that ejahar. In cross-examination however, be first stated that Ext. 1 was in his hand but subsequently amended by saying that Ext. 1 was not in his hand but had been written by Taher Ali (P.W. 3). He further testified in cross-examination that the ejahar which he had written in his own hand bad been submitted to the Incharge of the Moirabari Out Post and the document marked as Ext. 1 had been written by Taher Ali at the place of occurrence and after signing the same he had submitted the same to the police officer at the place of occurrence P.W. 3 who is the writer of Ext. 1, bas stated in his evidence that the police arrived at the scene of assault after his arrival there and the 1.0. asked him to write an ejahar at the time of taking down the statement of the injured. Ext. 1 was then written and it was then about 11:00 A.M. He further stated in cross- examination is that 1.0. had asked him to write the ejahar as the handwriting of the previous ejahar was bad. The explanation given by P.W. 2 that a fresh ejahar was written by Taher at the place of occurrence because the first ejahar given by him was not in clear hand (Taher has also given this as the reason for the 1.0. asking for a fresh ejahar) is not at all convincing or cogent. In any case even if the first ejahar was in bad band, the same cannot be a good reason not to keep the same on record. If that ejahar would have been produced we would have known whether the names of the assailants were in that document or not. As there was an earlier ejahar and as the same had not been produced in court there is reason to believe that the same must have been suppressed, and the cause for the same must be non-mentioning of the names of the assaillants in the document.