Crl. Appeal No. 334/2015 VERSUS. The State of Assam & Anr. B E F O R E HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE SUMAN SHYAM

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1 IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Crl. Appeal No. 334/2015 Md. Ziaur Jiaur Jaibur Rahman VERSUS The State of Assam & Anr. Appellant Respondent B E F O R E HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Mr. I.H. Laskar, Advocate Mr. P.K. Deka, Advocate Mr. S. Alam, Advocate For the Respondent : Ms. S. Jahan, Addl. P.P. Assam Date of hearing and judgment : (Suman Shyam, J) Judgment and Order (Oral) The sole appellant Ziaur Jiaur Jiabur has been convicted under Section 302 of the Indian Penal Code for committing the murder of Rafiqul Islam and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- with default stipulation. 2. The prosecution case, in brief, is that the deceased Rafiqul Islam was sleeping in the verandah of the Lailuri Veterinary Hospital along with his wife and daughter on and in the morning at 04:00 Crl. Appeal No. 334/2015 Page 1 of 7

2 am, the appellant had hacked the deceased with a dao while he was sleeping and fled the scene. The injured Rafiqul Islam was latter rushed to Katharmari Dispensary and therefrom taken to the Nagaon Civil Hospital where he died. 3. After the incident, an ejahar was lodged with the Officer-in- Charge, Amabagan Police Outpost by the wife of the deceased Amina Begum on reporting the said incident. An inquest was conducted by the Police on the dead-body and inquest report (Exhibit- 2) was prepared. Post Mortem Examination was also conducted on the dead body in the B.P. Civil Hospital, Nagaon on As per the Post Mortem Report (Exhibit-3) one incised would of scalp of 5 X 1 of skin deep size extending from right side of the occipital area across the right parietal area upto the right side of the frontal area and fracture of right parietal bone was noticed. Besides that, communited fracture of right parital bone and communited fracture of occipital bone on the right was found. Brain was also found to be compressed on right occipital and parietal area because of epidural and subdural collection of blood. The doctor who had conducted the Post Mortem Examination i.e. Dr. Pulin Bhattacharjee was examined as PW-6 who had opined that the death had occurred due to head injury caused by the injuries sustained by the deceased. Crl. Appeal No. 334/2015 Page 2 of 7

3 4. The prosecution case is mainly based on the testimony of Amina Begum (PW-2) i.e. the wife of the deceased who claimed to have seen the incident. In her testimony Amina Begum (PW-2) had deposed that on the day of the incident she along with her husband and daughter were sleeping at the varendah of the Veterinary Hospital as their house was damaged by a storm. At the time of dawn, the accused had come there with two others whom she could not recognize and given three blows with a dao to the head, eyes and nose of her deceased husband while other two were holding him tightly in the neck. After that the accused had left the scene and she raised alarm by shouting. However, the version given by the PW-2 stands contradicted by her statement recorded before the police under Section 161 Cr.P.C. where she has not mentioned about any of those things. On the contrary, in her statement recorded under Section 161 Cr.P.C., the PW-2 had stated that at about 04:00 a.m. on the day of the incident, the accused had hacked her husband on his face and nose with a dao and left the place and Upon hearing the scream of her husband when she cast a glance she saw the accused Ziaur Rahman fleeing the place. What would be significant to note here-in that the PW-2 did not mention before the police of having seen the incident or about the accused having come to the spot with two others nor did she mention that while accused was giving three Crl. Appeal No. 334/2015 Page 3 of 7

4 blows with a dao to the head, eyes and nose of the deceased, two others were holding him tightly in the neck. 5. There is yet another aspect of the matter which deserves to be mention herein. On an ejahar was lodged with the Officerin-Charge of Ambagan Police Outpost which was signed by the PW-2. As per the said ejahar (Exhibit-4) the accused had hacked the husband of the PW-2 Rafiqul Islam with a dao and on seeing the incident she had raised alarm whereupon two youths accompanying the accused person had gagged her. However, the said fact has neither been mentioned in her statement recorded under Section 161 Cr.P.C. nor has the witness deposed to that effect before the court. It is, therefore, apparent that the Amina Begum (PW-2) has given three different versions of the incident changing her stand from time to time. That apart, in her statement recorded under Section 161 Cr.P.C. the witness did not claim to have seen the incident of hacking whereas in the ejahar (Exhibit-4) as well as in her deposition before the court, Amina Begum has claimed to be an eye witness to the incident. The aforesaid inherent contradiction in the different versions given by PW-2 renders her testimony as wholly untrustworthy so as to form the basis of conviction under Section 302 Indian Penal Code. 6. The other evidence relied upon by the trail court is the oral dying declaration of the deceased. Witness Yasin Ali (PW-3) has deposed Crl. Appeal No. 334/2015 Page 4 of 7

5 before the court that the injured Rafiqul had told him while he was being carried in an auto-rickraw to the Puthikhaiti Hospital that the accused Jiabur had stabbed him with a dao. The said witness had also deposed that while he was taking the injured Rafiqul Islam in the autoricksaw his brother Arshad Ali was also with him. Arshad Ali was examined as PW-5 and the said witness had also deposed before the court that the injured Rafiqul Islam while being taken in an autorickraw told him that he was injured by the accused Jiabur. However, Arshad Ali did not disclose the said fact before the police while recording his statement under Section 161 Cr.P.C. 7. Sub-Inspector Padma Gogoi (PW-8) had confirmed during his cross-examination that Arshad Ali (PW-5) had not stated before the Police regarding the statement made by Rafiqul Islam identifying his assailant. The statement allegedly made by the injured Rafiqul Islam naming the person who has caused such grievous injury to him was a vital piece of information and if the same was true then the same could not have been omitted by Arshad Ali while recording his statement before the police. The aforesaid omission, therefore, raises a serious doubt in our mind as regards the truthfulness of the claim made by the PWs-3 and 5 regarding the oral dying declaration made by Rafiqul Islam inasmuch as we do not find the said evidence as trustworthy at all. That apart, it also needs to be noted that the doctor who had Crl. Appeal No. 334/2015 Page 5 of 7

6 conducted the Post Mortem Examination (PW-6) had also clearly stated during his cross-examination that the central nervous system of the deceased was affected because of the injury sustained by the victim in the brain and as such there was no question of mental stability due to the injury sustained. The doctor had categorically opined that if a person receives such brain injury, he could not have been in the state of consciousness. Having regard to the medical evidence available on record, more particularly, the testimony of the doctor PW-6 it appears highly improbable to us that having suffered such serious head injury damaging the brain, the injured Rafiqul Islam was at all in a position to make any disclosure about his assailant to Yasin Ali and Arshad Ali. 8. For the reasons stated hereinabove, we find that the testimony of PW-2 Amina Begum, PW-3 Yasin Ali and PW-5 Arshad Ali does not constitute reliable evidence for convicting the appellant for committing the murder of Rafiqul Islam. Beside the above, there is no material available on record so as to establish the involvement of the appellant in the commission of the crime. In such view of the matter, we are of the opinion that there was no cogent evidence available before the Trial Court for convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life. 9. In the result, this appeal must succeed and is hereby allowed. Conviction of the appellant as well as the sentence imposed by the Trial Crl. Appeal No. 334/2015 Page 6 of 7

7 Court is hereby set aside. Since the appellant is in jail, he be forthwith released, unless his custodial detention is required in connection with any other case. JUDGE CHIEF JUSTICE GS Crl. Appeal No. 334/2015 Page 7 of 7