Tripura High Court
Jabir Hussian Choudhury vs The State Of Tripura on 23 February, 2022
Page 1 of 17
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.01 OF 2020
1. Jabir Hussian Choudhury,
S/o. Late Ajir Uddin Choudhury,
Resident of Vill, Baghan,
P.S. Churaibari, Dharmanagar,
District- North Tripura.
2. Kabir Uddin Choudhury,
S/o. Lutfur Rahaman Choudhury,
Resident of Vill. Uttar Fulbari,
P.S. Churaibari, Dharmanagar,
District- North Tripura.
3. Jashim Uddin Choudhury @ Atai Choudhury
S/o. Abdul Malik Choudhury,
Resident of Vill. Baghan, Ward No.03,
P.S. Kadamtala, Dharmanagar,
District-North Tripura.
----- Convict Appellant(s)
Versus
The State of Tripura.
-----Respondent(s)
For the Appellant(s) : Mr. D.K. Deb, Advocate.
Mr. Alik Das, Advocate.
For the Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing and delivery of
Judgment & Order : 23/02/2022.
Whether fit for reporting : NO.
BEFORE
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE ARINDAM LODH
J U D G M E N T & O R D E R(ORAL)
(T. AMARNATH GOUD)
This criminal appeal under Section- 374(2) of the Code of
Criminal Procedure, 1973 is directed against the judgment and order
of conviction and sentence dated 16.11.2019, passed by the learned
Session's Judge, North Tripura, Dharmanagar, in connection with
Case No. S.T.(Type-1) 25 of 2015, whereby and whereunder, the
appellants have been convicted under Section-302 read with
Section-34 of Indian Penal Code sentencing them to suffer Rigorous
Imprisonment for life and also liable to pay a fine of Rs.10,000/-
with default stipulations.
[2] The prosecution case as revealed at the trial is that,
one Mst. Anowara Begam, wife of late Ala Uddin of Baghan, lodged
an ejahar with the Officer-in-charge of the Churaibari Police Station
to the effect that on 13.09.2014 at about 21.00 hour her son Amirul
Islam went out from home riding on his motorbike to go to
Kadamtala but, while he reached at Baghan village in front of the
house of the accused person namely, Mortuja Ahmed Choudhury,
the accused persons namely, Mortuja Ahmed Choudhury, Kabir
Uddin, Khaiyrul Hussen, Jabir Hussain, Jashim Uddin, and Jamal
Uddin, wrongfully restrained him by blocking the road with a tree of
betel nut and they assaulted him with a piece of wood for which he
received grievous bleeding injuries. The accused persons also
assaulted Anowar Hussain who was also accompanied by Amirul
Islam and both of them were shifted to Dharmanagar Hospital.
Thereafter, both of them were taken to Silchar Medical College and
Hospital, and thereafter, considering the critical condition of the son
of the complainant, he was referred to Guwahati but, on the way at
Jorabat, Meghalaya her son succumbed to his injuries.
[3] On the basis of the aforesaid complaint, the officer-
in-charge, Churaibari P.S. registered Churaibari P.S. Case No.2014
CRB 033 for the commission of offence punishable under Sections-
341/323/302/34 of the Indian Penal Code, 1860 against the
accused-persons and endorsed the case to the Investigating Officer
for investigation. Thereafter, after completion of the investigation,
the I.O. being prima facie satisfied submitted charge sheet in the
instant case against the accused persons for commission of offence
punishable under Sections-341/323/302/34 of IPC.
[4] On receipt of the aforesaid charge sheet and on
perusal of the same, the Judicial Magistrate, First Class,
Dharmanagar took cognizance of the offences punishable under
Sections-341/323/302/34 of IPC against the accused persons and
copies of the incriminating documents were supplied to the accused
persons in compliance to the provision of Section-207 of the Code of
Criminal Procedure, 1973 and since the offences are exclusively
triable by the Court of Session, the case was committed to this Court
for adjudication.
[5] Thereafter, on receipt of the case record on
commitment since accused Jamal Uddin was reported to have died,
his name was struck off and subsequently, upon hearing both sides
on the point of framing of charge, and on being prima facie satisfied
charges under Sections-341/323/302 read with Section-34 of IPC in
three heads were framed against the rest six accused-persons and
the contents of the charge was read over and explained to the
accused-persons in open Court to which they pleaded not guilty and
claimed to be tried.
[6] During the course of the trial to prove the accusation,
the prosecution examined 12 [twelve] witnesses and also exhibited
some documents [Exbt. 1, 1/1 to Exbt.17 and Exbt.A]. On behalf
of the accused persons, one document was exhibited. After
examining the evidence adduced by the prosecution, the accused
appellants were examined under Section-313 of Cr.P.C. On the basis
of the evidence adduced by the prosecution and the materials on
record, the learned Court below came to an opinion that the
prosecution has been able to prove the charge under Section-302
read with Section-34 of the Indian Penal Code against the accused
persons for committing offence as stated above and passed the
judgment and order of conviction and sentence on 16.11.2019.
[7] Aggrieved by and dissatisfied with the impugned
judgment of conviction dated 16.11.2019, the accused persons,
preferred the instant appeal.
[8] Heard Mr. D.K. Deb, learned counsel and Mr. Alik
Das, learned counsel appearing for the appellants as well as Mr. S.
Debnath, learned Addl. P.P. appearing for the State-respondent.
[9] Mr. D.K. Deb, learned counsel appearing for the
accused-appellants has submitted that the judgment and order of
conviction and sentence passed by the learned trial Court suffers
from illegality, impropriety, and irregularity and as such, the
conviction and sentence are required to be set aside/quashed. He
has further stated that the learned trial court failed to appreciate the
law, facts, and circumstances and as such, the order of conviction
and sentence is liable to be set aside.
[10] Mr. Deb, learned counsel has further argued that the
examination of the appellants under Section-313 of the Criminal
Procedure Code was not done in accordance with law and the
appellants were convicted merely on conjectures and surmises and
hence, the order of the learned trial Court is liable to be quashed.
[11] Further, from the deposition of PW-1 [Anwar Hussain
@Aku) it becomes crystal clear that the prosecution story is
concocted and convicts were made a party to this false case by the
informant. There is a cloud of doubt regarding the genesis of the
incident. The real cause is suppressed. But, the learned trial Court
did not consider the same, and hence, the impugned judgment and
order of conviction and sentence is liable to be set aside.
[12] PW-1, who is the vital witness of this case deposed
before the learned trial Court below that after the alleged incident
one Babul Uddin came at the spot and telephoned the brother of the
deceased i.e. PW-6 (Joyrul Islam). But, the PW-6 deposed before the
learned trial Court that the incident took place at about 9-9:15 pm
on 13.09.2014, at that time he was at his house at Kathaltali, Assam
and his mother received one phone call from his brother Amirul i.e.
the deceased and his mother being old fellow used to attend the call
in loudspeaker mode and he was near his mother and he also heard
that Amirul was telling his mother about the incident and thereafter,
he snatched the mobile from his mother and the deceased disclosed
the same thing to him. But most surprisingly the learned trial Court
did not consider the same and hence the impugned judgment and
order of conviction and sentence is liable to be set aside.
[13] Mr. Deb, learned counsel has further stated that after
the incident, one Babul Uddin came at the spot and called PW-6 over
the telephone, and thereafter PW-1 and the deceased were taken to
the hospital but, unfortunately, he was not examined by the learned
trial Court below hence, the impugned judgment and order of
conviction must be set aside.
[14] From the evidence of PW-6, Joyrul Islam, and PW-4,
Md. Forij Uddin it reveals that after the incident, both the deceased
and the PW-1 were shifted to Kadamtala PHC by their vehicle and
they both have disclosed to the Medical Officer that they sustained
injuries in an accident and they made false statements before to the
Medical Officer as they were an inhabitant of Assam and so they did
not want to disclose everything in the PHC. So, basically the patient
party first informed the doctor that the incident was a case of
vehicular accident and thus, casts doubt on the case of the
prosecution. Hence, it clearly shows a cloud of doubt regarding the
genesis for the incident, and the convicts were made a party to this
false case by the informant, and hence the impugned judgment
should be set aside.
[15] It has been further stated that PW-12 (Sri Manoj
Kumar Chanda) deposed before the trial Court that on the following
day of the registration of the case, he visited the place of occurrence
and seized one piece of betel nut tree and one wooden file in
presence of witnesses under a proper seizure list [Exbt.13] and
recorded their statements under Section-161 of Cr. P.C. and seized
one bike bearing No. TR-02-A-7259 and its relevant documents and
also seized other papers from the possessions of one Babul Nath
who was the alleged victim of the alleged incident and who is also
another eyewitness of this incident. But, surprisingly, he was not
examined by the learned trial Court.
[16] He has stated that PW-1 deposed before the trial
Court that after getting injuries when the deceased and the PW-1
both raised alarm then local people came out to help them, but they
were threatened by the accused persons not to help the victim but,
the local people could have at least bring this matter to the notice of
the police immediately or they could have done it when the accused
persons left the place but, they were reluctant to do so which
creates serious doubts on the prosecution story as because both the
victims were lying in the road for sometime after the incident and
when the brother i.e. PW-6 and the uncle of the PW-6 reached the
spot they found that both the deceased and PW-1 were lying on the
road with injuries and they both were conscious and they narrated
the whole incident to them. He has further submitted that the
convicts left the place before their arrival. No attempts were made
on the part of the local people to bring the matter to the notice of
the people after the accused persons left the spot. But, the learned
trial Court did not consider the same at the time of appreciation of
the evidence.
[17] There exist many lacunas in the process of
investigation as well as in the development of the chain of events
during the trial. Also, there are so many vital omissions and
contradictions in the depositions of PWs-1, 2, 4, 5 and 6 but, the
learned trial Court below did not consider the same at the time of
deciding the case against the appellant.
[18] After overall analysis, we are of the considered
opinion that it is very unfortunate that the learned trial Court has
failed to differentiate between material contradictions and
corroboration and by such has resulted in the print of an impugned
judgment which is contrary to the precedent against the normative
mandate of law, assuming a precautious role have paved the path of
unbelievable laconicness to deal with a criminal trial and thus, have
ruptured the sense of justice and puncture the criminal justice
dispensation system.
[19] The presence of so many improbabilities with
material omissions and contradictions and the absence of
corroboration of prosecution witnesses establishes the single fact
that the prosecution has crashed to prove their story beyond
reasonable doubt. The Court below was pleased to convict the
present convict-appellants from his own views deviating from the
mandate of law. There was no whisper in the evidence nor any
witness has disclosed that there is a conspiracy nor there was a prior
meeting of minds, but the court below has appreciated the evidence
and came to a conclusion that there was presence of conspiracy.
[20] It is pertinent to mention that Sri Babul Nath who
was not been examined by the prosecution, was one of the injured
persons of the alleged incident and according to the prosecution
story, the said Babul Nath sustained injuries due to the assault of
the accused persons. But, said eye witness, as well as the injured
person, had not been examined on behalf of the prosecution. PW-1
who claims to be the eyewitness of the alleged incident and also an
injured person did not mention the name of the present convict-
appellants during his deposition.
[21] PW-1 in his deposition has specifically stated that the
incident took place on 13.09.2014 at about 9.00 pm at Baghan in
front of the house of accused Mortuja Uddin Ahmed whom he called
Martuj Mama. On that date and time, he along with Amirul Hussain
and one Babul Nath were returning from Kathaltali, Assam through
Baghan Dobhag Fari road by riding a bike. Amirul was riding the bike
and then he sat and thereafter Babul Nath. When they reached near
the house of Martuj Uddin Ahmed, then, Martuja Uddin and 3/4
persons gave signal to them to stop. Thereafter they stop their bike
and Martuj uddin Ahmed demanded money saying that they used to
deal with illegal businesses just like smuggling. He replied in
negative. Thereafter, Martuj Uddin said why at the night they were
returning and on to this a hot altercation took place. Suddenly
Martuj Uddin asked his associates to attack them and immediately
Martuj uddin gave a blow at the head of Amirul Hussain by means of
a wooden file. Thereafter, all of them feel down. The other
associates were Kairul Hussain, Jamal Hussain, and one Anwar. Two
other persons were there. They were one Kabir and Jashim and they
were to some extent ahead and they did not participate in the
offence. He was assaulted by Jamal by means of lathi. Kairul, Jamal
Anwar and Martuj collectively assaulted Babul Nath. Martuj caused
multiple head injuries at the head of Amirul and Amirul sustained
bleeding injuries.
[22] From the above depositions of PW-1, it is evident
that the present convict appellants were not associates of accused
Martuj Uddin Ahmed. It is further evident that the present convict-
appellants did not participate in the alleged offence in any manner.
[23] PW-1 is the sole eyewitness of the alleged incident
and he did not whisper a single word against the present convict-
appellants. He categorically stated the names of the accused persons
who participated in the alleged offence. He never stated that before
the alleged incident either there was any previous meeting amongst
accused persons including the present convict-appellants in
connection with the alleged incident or there was any conspiracy
fetched by the accused persons in respect of this incident. The PW-1
did not state that there was a pre-arranged plan amongst the
accused persons including the present convict-appellants regarding
the alleged incident.
[24] According to the deposition of PW-1 Martuj Uddin
Ahmed caused multiple head injuries at the head of Amirul. But the
doctor who conducted the medical examination i.e. PW-3, Dr.
Mriganka Datta Biswas in his deposition averred that on 14.09.2014
he being a medical officer of Kadamtala PHC at about 12.05 am
examined one patient namely Amirul Islam with history of head
injury following road traffic accident. On examination of the patient
he found one injury on right parietal region measuring 3cm x 3cm x
full scalp thickness. It was found fresh in nature and the time of the
injury in his opinion was within 6 hours.
[25] From the above statement of PW-3, it was opined
that on his examination he found only one injury measuring 3cm x
3cm x full scalp thickness, whereas, PW-1 stated that Mortuj caused
multiple head injuries at the head of Amirul. That apart, the
statement made by PW-1 and the statement made by PW-3
regarding the time of the accident are also not same.
[26] Regarding the injury of the deceased, PW-7, Dr.
Subrata Biswas in his deposition before the trial Court stated that he
found one hematoma in occipital region which was measuring 2cm x
1cm with a history of no-contact. CT Scan was done and that
indicated subdural hematoma. According to this Court, regarding
injuries of the deceased, the three witnesses i.e. PW-1, PW-3 and
PW-7 have stated differently. But, this aspect of the matter has not
been appreciated by the learned trial Court.
[27] PW-1 in his cross-examination has stated that after
half an hour from the time he fell down from the bike a Maruti Van
came. They were five persons on board in the van. There was no
Alto vehicle. Whereas, PW-6 Joyrul Islam has deposed that he has
shifted his brother Amirul Islam and PW-1, namely, Anowar Hussain
by his Alto vehicle bearing No.AS-10-A-6159. These statements of
PW-1 and PW-6 are not at all corroborative rather contradictory
which has totally escaped from the judicious mind of the learned
trial Court during the appreciation of the evidence of the PW- and
PW-6.
[28] As per the statement of PW-1, one Babul Uddin came
and Babul Uddin telephoned Joyrul Islam (PW-6), the brother of the
deceased but, the said Babul Uddin was neither examined by the
I.O. nor he has cited as a witness during filling of charge-sheet after
completion of the investigation. The telephone number of Babul
Uddin is also not mentioned anywhere during the investigation and
the telephone has not been seized by the I.O. Whereas, PW-6 in his
deposition never stated that he received any telephone from Babul
Uddin. PW-1 stated that after treatment, he was released from
Kadamtala PHC, but the I.O. did not seize any injury report of PW-1.
If PW-1 was treated at Kadamtala PHC and if he sustained an injury,
it must be reflected in the injury report.
[29] From the deposition of PW-12, the Investigating
Officer of the case, it reveals that the hand sketch map [Exbt.11] of
the P.O. and its index is marked as Exbt. 11 and 12 respectively. In
Exbt.11 and 12 there are houses of Ala Uddin Choudhury and Bachit
Ahmed Choudhury, but, neither Ala Uddin Choudhury nor Bachit
Ahmed Choudhury was examined by the I.O. or cited them as
witnesses. He has further stated that he seized medical prescriptions
and other papers from the possession of Babul Nath who was
allegedly the victim in the alleged incident by preparing a seizure list
which was marked as Exbt.13. But, Babul Nath though cited as a
witness of the charge sheet, has not been examined on behalf of the
prosecution being a vital eye witness of the case.
[30] According to PW-6 he has shifted both the injured
PW-1 and his brother Amirul to the Kadamtala PHC at a time. From
the medical report of his brother Amirul, it is evident that his brother
was brought to Kadamtala PHC at about 12.15am on the night of the
incident i.e. on 13.09.2014 whereas, the medical report of PW-1
suggests that he was brought by one Nurul Haque on 14.09.2014 at
7.40 pm in the Kadamtala PHC i.e. after 19 hours of the alleged
incident. As such, the statement of PW-6 and the medical report of
PW-1 are contradicting each other.
[31] From the injury report of PW-1, it would be further
evidence that one Nurul Haque, maternal brother of PW-1 who
brought the injured Anwar Hussain (PW-1) in the Kadamtala PHC
had not been cited as a witness by the I.O. during filing the charge-
sheet or the prosecution did not examine him though he was an
important witness of the instant case.
[32] PW-1 has stated that perhaps after one day of
incident, police took him to the place of occurrence and in front of
the gate of Mortuja Uddin, police seized one piece of betel nut tree
and 2/3 pieces of a branch of trees. The branch of the tree would be
about 2 cubits and the piece of betel nut tree would be 4 cubits. But
PW-12 in his cross-examination admitted that in the hand sketch
map of the P.O. and its index (Exbt. 11 & 12 respectively), does not
reflect as to which place the seized piece of betel nut tree and one
wooden file were found. Hence, the deposition of PW-1 is not
reliable.
[33] PW-12 in his cross-examination admitted that as per
the hand sketch map, the place of occurrence is situated in front of
the entrance of the house of Ala Uddin Choudhury and Bachit Ahmed
Choudhury and the distance in between the P.O. and entrance of the
house of Mortuja Uddin Choudhury is about 20 feet. As such, both
the statements of PW-1, the only eye witness to the incident, and
PW-6 regarding the place of occurrence are proved false.
[34] The learned trial Court has passed this impugned
judgment and order of conviction against factual evidence and
against law. In criminal trials so long the accused is not proved
guilty, he is to be treated as innocent. But on perusal of the
impugned judgment and order of conviction passed by the learned
Court below, it would be evident that the court below has failed to
appreciate the legal prospect of the present case.
[35] The way the prosecution has projected the case and
being found serious contradictions and inconsistencies in the
statements in course of the trial, it would be very difficult for this
Court to believe the projected case of the prosecution. It is a settled
proposition of law that the charge framed against the accused
person has to be established and proved beyond any shadow of
doubt. Suspicions, however, grave in nature, should not amount to
prove. The discrepancies which are found in this case as analysed
above, appeared to be abnormal in nature which is not expected
from a normal person. After cautious scrutiny of the evidence and
considering the entire chain of circumstances, we find it difficult to
arrive at a finding to draw the hypothesis of guilt against the
accused-appellant.
[36] In the backdrop of the above analysis, we are of the view
that the prosecution has failed to establish their projected case, and
consequently, the instant appeal is allowed. Order of Trial Court in
so far as the appellants of this instant appeal namely, Jabir Hussian
Choudhury, Kabir Uddin Choudhury and Jashim Uddin Choudhury @
Atai Choudhury is set aside on the strength of the evidence of the
P.W.1, namely, Anwar Hussain @ Aku who has categorically stated
that these persons have not participated in the above-mentioned
incident in killing Amirul. Going through the evidence of P.W.-1
there is no whisper with regard to the participation of these 3(three)
persons either directly or indirectly and the prosecution has not
placed any evidence before the Court to prove that the involvement
of these 3(three) persons in the alleged crime.
[37] Accordingly, the order of conviction and sentence
passed by the learned Sessions Judge, North Tripura, Dharmanagar,
in Case No. S.T.(Type-1) 25 of 2015 vide judgment dated
16.11.2019 is set aside. The appellants, namely, Jabir Hussian
Choudhury, Kabir Uddin Choudhury and Jashim Uddin Choudhury @
Atai Choudhury, shall be released forthwith, if not wanted in
connection with any other case.
[38] With the above observations and direction, the
instant appeal stands allowed and disposed of. As a sequel,
miscellaneous applications pending, if any, shall stand closed. Send
down the LCRs.
(ARINDAM LODH,J) (T. AMARNATH GOUD,J)
suhanjit
