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KayumuddIn Mia Vs. Abdul Gafur and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantKayumuddIn Mia
RespondentAbdul Gafur and ors.
Excerpt:
- - 2. the learned sessions judge considered the evidence on record and acquitted the accused persons holding that the prosecution failed to prove the charges against the accused persons beyond reasonable doubt, 3. mr. even though the prosecution may be found not to have come with a clean story or not to have disclosed the whole story, in a murder case, it is the duty of the trial court to sift the evidence very carefully and try to find out the real truth from the evidence on record and not to avoid responsibility by merely observing that the prosecution has not come with a clean story and therefore prosecution must fail. 10. on a consideration of the judgment of the learned sessions judge, we are of the opinion that the learned sessions judge has failed to dispose of the case in..........his son kayumuddin mia on hearing alarm went there and saw his father being assaulted by the accused persons from a distance of about 10/15 yards. he immediately rushed to the place of occurrence when he was also assaulted by the accused persons. abdul jabbar fell down and became unconscious. hearing hulla kamla khatun wife of kayumuddin and nasiban nessa wife of abdul jabbar came to the place of occurrence. the two injured persons were removed to their house where abdul jabbar succumbed to his injuries. kayumuddin was then removed to the hospital for treatment. ejahar was lodged at barpeta police station. after investigation police submitted charge-sheet under section 302/34 indian penal code. the learned committing magistrate charged the accused persons under section 302/34,.....
Judgment:

M.C. Pathak, J.

1. This Revision Petition is directed against an order of acquittal passed by the learned Sessions Judge, L. A. D. at Gauhati. The accused-opposite parties were charged Under Section 302/34 and 323 I. P- C. The prosecution story in brief was that on 25-10-1966 Abdul Jabbar after taking his tea in the morning went out of his house when he was assaulted by the accused-opposite parties. His son Kayumuddin Mia on hearing alarm went there and saw his father being assaulted by the accused persons from a distance of about 10/15 yards. He immediately rushed to the place of occurrence when he was also assaulted by the accused persons. Abdul Jabbar fell down and became unconscious. Hearing hulla Kamla Khatun wife of Kayumuddin and Nasiban Nessa wife of Abdul Jabbar came to the place of occurrence. The two injured persons were removed to their house where Abdul Jabbar succumbed to his injuries. Kayumuddin was then removed to the hospital for treatment. Ejahar was lodged at Barpeta Police Station. After investigation police submitted charge-sheet Under Section 302/34 Indian Penal Code. The learned committing Magistrate charged the accused persons Under Section 302/34, Indian Penal Code. In the Sessions Court the accused persons were charged as stated above. The accused pleaded not guilty to the charges. The prosecution examined 10 witnesses and the defence did not adduce any evidence. The defence case was that the accused were standing outside the compound of the deceased who on seeing them chased them and while chasing he slipped over the ground and sustained the injuries and as a result of which he died. Kavumuddin also chased the accused persons when they were standing outside and in course of a melee Kayumuddin sustained the injuries.

2. The learned Sessions Judge considered the evidence on record and acquitted the accused persons holding that the prosecution failed to prove the charges against the accused persons beyond reasonable doubt,

3. Mr. A. M. Mazumdar, the learned Counsel appearing for the petitioner submits that the learned Sessions Judge committed errors of law in appreciating the evidence. On perusal of the judgment of the learned Sessions Judge it appears that he acquitted the accused persons mainly on these grounds : that the injuries on the deceased and P. W. 1 were stated to be caused by 'fala' or bamboo spear but doctor found the injuries to have been caused by blunt weapon, that the injuries of both the deceased and P, W. 1 could be caused by fall, and that P. W. 3 Kamla Khatun admitted that she had not seen the actual assault and therefore she could not be regarded as an eve witness to the occurrence, and that the eye witnesses were of the same family and therefore they were interested witnesses.

4. We have gone through the evidence of P. W. 3 Kamla Khatun, There is nothing in her evidence to show that she admitted that she had not seen the actual assault. This finding of the learned Sessions Judge therefore appears to be not borne out by the evidence on record.

5. The following injuries were found on the deceased Abdul Jabbar:

1. One lacerated wound 1 1/4' x 1/2' into bone deep on lateral part of right eyebrow.

2. One lacerated wound 1 1/2' x 1/2' into bone deep over medial part of right eye brow.

3. One lacerated wound 1 1/2' x 1/2' into bone deep on the right parietal region of head over the mid line,

4. One lacerated wound 1/2' x 1/4' into bone deep on right side of the root of the nose.

The following injuries were found on Kayurnuddin P. W. 1:

1. One lacerated wound 1 1/2' x 3/4' into scalp deep on right side of occipital region of the head.

2. One lacerated wound 1' x 1/4' into scalp deep in the posterior part of the left parietal region of head near the mid line.

3. One lacerated wound 2/3' x 1/3' into scalp deep antero posterior on top of head on the left side near the mid line.

4. One lacerated wound 2 1/4' x 1/4' into scalp deep on the right parietal region of the head.

5. One lacerated wound 1/2'x3/4' muscle deep over the outer part of right eye brow.

6. In this case one man is alleged to have been murdered, who sustained four injuries as stated above and another is alleged to have been seriously injured, who sustained five injuries as stated above. In view of the serious allegations in the case before coming to a decision whether the above injuries on the deceased and P. W. 1 could be caused by blunt weapon or by 'fala' or bamboo spear, the learned Sessions Judge ought to have considered the evidence of the eye witnesses, the medical evidence, the inquest report and any other relevant evidence that may be on record. If necessary, authorities on medical jurisprudence also may be consulted to remove any doubt in this regard. The learned Sessions Judge is found not to have considered the entire evidence on this point in the instant case.

7. The learned Sessions Judge is found to have inferred that the injuries on the deceased and P. W. 1 might have been caused by fall but in arriving at this inference he is led more by conjectures than by evidence on record inasmuch as he has not applied his mind to the nature, dimension and location of the injuries on the deceased and p. W. 1.

8. At one stage the learned Sessions Judge in his judgment has observed that the prosecution has not come with a clean story about the actual occurrence and that appears to be one of the circumstances for his disbelieving the prosecution case. Even though the prosecution may be found not to have come with a clean story or not to have disclosed the whole story, in a murder case, it is the duty of the trial court to sift the evidence very carefully and try to find out the real truth from the evidence on record and not to avoid responsibility by merely observing that the prosecution has not come with a clean story and therefore prosecution must fail. This view is supported by the Supreme Court decision in Abdul Gani v. State of Madhya Pradesh : AIR1954SC31 .

9. Lastly, the brushing aside of the evidence of the eye witnesses by the learned Sessions Judge on the ground that they are interested witnesses as they belong to the same family is not based on sound principle of appreciation of evidence in a murder case. Witnesses even though they may be related, should not be discredited because of their relation only. It does not necessarily follow that a witness, who is related to the deceased, will always speak untruth or will implicate wrong persons falsely. In this connection the following passage from the decision of the Supreme Court in Dalip Singh v. State of Punjab : [1954]1SCR145 is apposite:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

This is not to say that in a given case a judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices.

10. On a consideration of the judgment of the learned Sessions Judge, we are of the opinion that the learned Sessions Judge has failed to dispose of the case in accordance with law. In a serious charge like murder the responsibility of the trial court is much heavier and therefore the trial court is required to appreciate the evidence carefully without resorting to unwarranted conjectures.

11. In the result we set aside the impugned order of acquittal and remand the case for retrial by the learned Sessions Judge. The petition is accordingly, allowed.

P.K. Goswami, C.J.

12. I agree.


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