ATAUR RAHMAN ALIAS BOTOL Vs. STATE OF ASSAM

JUDGEMENT

(1.) APPELLANT was tried by the Adhoc Additional Sessions Judge, Hojai, Sankardev Nagar under the charges under Sections 341 and 302 IPC for restraining Basiruddin (since deceased) while he was returning from shop and for causing death of said Basiruddin on 4th day of September 2001 at about 7. 30 am at Pub-Jamunagaon within the territorial jurisdiction of Morajhar police station under Hojai Sub-division. After due trial, appellant was found guilty under Section 302 IPC. However, he (appellant) was not found guilty under the charge under Section 341 IPC on account of lack of evidence. The adhoc Additional Sessions Judge having found the appellant guilty under Section 302 IPC, convicted and sentenced him to suffer imprisonment for life with fine of Rs. 2000/-, in default, rigorous imprisonment for another 1 (one) year. The appellant, feeling aggrieved thereby, preferred this appeal challenging legality and correctness of the judgment of conviction rendered by the trial court.

(2.) THE facts divulged, in brief, can be summarized as under. Informant Md. Nuruddin is the brother of Md. Basiruddin (since deceased ). Appellant Ataur Rahman @ Botol is a co-villager of the informant. On 4th day of September, 2001 at about 7 a. m. while Md. Basiruddin (since deceased ) was returning home from Alauddin's shop, appellant Ataur Rahman @ Botol and another together accosted him and caused grievous injuries on the person of Md. Basiruddin by means of dao and some other sharp cutting weapon and left the place leaving Basiruddin at the place of occurrence. Injured Basiruddin was removed to Hojai for treatment but before reaching hospital, on way, he died. Narrating the facts Md. Nuruddin, brother of deceased Basiruddin filed an FIR (Ext. 2) with the officer-in-charge of Morajhar Police station on the same date of about 10. 25 am. Morajhar P. S. case No. 126 of 2001 under Section 341/302/34 IPC was registered. After due investigation a charge sheet was laid against the present appellant under Sections 341/302 IPC. The case being exclusively triable by the Court of Sessions, it was accordingly committed to the court of Sessions at Nagaon, which was subsequently made over to Adhoc Additional Sessions Judge, Hojai Sankardev Nagar for trial. Thereafter, the learned Adhoc Additional Sessions Judge, Hojai, Sankardev Nagar on 28. 2. 2003 framed charges against the appellant under Section 341 and 302 IPC. He (the appellant) having not pleaded guilty, trial proceeded. Altogether 18 witnesses were examined including the doctor, the Investigating Officers and another police officer who conducted inquest on the dead body of Basiruddin. Prosecution also proved the seizure memos marked as Ext. 1 and Ext. 3. At the conclusion of the trial, the trial court did find the appellant guilty of the charge under Section 302 IPC and convicted him as above. Appellant was, however, not found guilty under Section 341 IPC and accordingly acquitted.

(3.) WE , at the very out set record our deep appreciation, the manner in which Mr. Bora dealt with the appeal. Mr. Bora while submitting unhesitatingly conceded that the appeal is devoid of merit since there are overwhelming evidence against the appellant showing his complicity in the commission of the alleged crime. Availability of such evidence, according to Mr. Bora perhaps, cannot absolve the appellant from the charge under Section 302 IPC. Mr. Bora, further submitted that there are eye witnesses to the actual occurrence and dying declaration which when coupled together only points towards the appellant and that it was he, who caused the death of Basiruddin by dealing multiple fatal blows on him (Basiruddin) with the help of dao. Mr. Bora in this context referred to the evidence of Md. Surag Ali (P. W-6), Fatarun Nessa (P. W.-7), Md. Habibur Rahman (P. W-9), Md. Samjid Ali (P. W-10), Md. Rahimuddin (P. W-13) and Md. Badan Chandra Kakaty (P. W-15), the doctor. Evidence of these witnesses, if conjointly read, results into complicity of the appellant and the appellant alone. Evidence of remaining witnesses per submission of Mr. M. Bora, do not play pivotal role in the assessment of guilt of the appellant. Mr. Latibur Rahman (P. W-1) and Afia Begum (P. W-4), the wife of the appellant turned hostile to the prosecution. Md. Yakub Ali (P. W-2) and Smti. Alfatunessa (P. W-3) were not the eye witnesses to the actual occurrence. They heard about the death of Basiruddin from others. The above submission of Sri Bora, has perhaps rendered a spacious room to us to give a decision on this appeal without much strain in our mind. Despite that, we like to scan the evidence to see whether the appellant can be held guilty of the charge under Section 302 IPC. At this, it would also be appropriate to refer to the submission advanced by Mr. Z. Kamar, learned Public Prosecutor for the State respondent. Mr. Kamar while arguing submitted that the overwhelming evidence appearing in the face of the record only points to the guilt of the appellant and appellant alone. He too appreciated the submission of Mr. Bora, the learned counsel appearing for the appellant.