Khairul Hussain Choudhury vs The State Of Tripura
2022 Latest Caselaw 223 Tri

                                     Page 1 of 11


                        HIGH COURT OF TRIPURA
                           A_G_A_R_T_A_L_A
                            Crl.A(J). No. 41 of 2020

1.     Khairul Hussain Choudhury, son of late Ajir Uddin Choudhury,
       resident of Baghan, P.S. Churaibari, District: North Tripura,
       Dharmanagar.

                                                                .....Appellant

                                   -V E R S U S-

1.     The State of Tripura.
                                               ..... Respondent.

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH

For Appellant(s) : Mr. Subrata Sarkar, Sr. Advocate.

Ms. P. Chakraborty, Advocate.

For Respondent(s)              :      Mr. Sumit Debnath, Addl. P.P.
Date of hearing
and delivery of
judgment and order             :      23.02.2022
Whether fit for reporting      :      NO

                       JUDGMENT & ORDER [ORAL]

Heard Mr. S. Sarkar, learned senior counsel assisted by Ms. P. Chakraborty, learned counsel appearing for the convict-appellant and Mr. Sumit Debnath, learned Addl. Public Prosecutor appearing for the State of Tripura-respondent.

[2] 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.(T-1) 25 of 2015, whereby and whereunder, the appellant has been convicted under Section-302 read with Section-34 of IPC sentencing him to suffer Rigorous Imprisonment for life and also liable to pay a fine of Rs.10,000/- with default stipulations.

[3] 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 riding on his motor bike to go to Kadamtala but, while he reached at Baghan village in front of the house of the accused persons namely, Mortuja Ahmed Choudhury, Kabir Uddin, Khayrul Hussain, Jabir Hussain, Jashim Uddin and Jamal Uddin, wrongfully restrained him by blocking the road with 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 with Amirul Islam and both of them were shifted to Dharmanagar Hospital and 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.

[4] On the basis of the aforesaid complaint, the officer-in- charge, Churaibari P.S. registered Churaibari P.S. Case No.2014 CRB 033 for commission of offence punishable under Sections- 341/323/302/34 of IPC against the accused-person and endorsed the case to the Investigating Officer [I.O. for shirt] for investigation. Thereafter, completion of the investigation, the I.O. being prima facie satisfied submitted charge sheet in the instant case against the accused person for commission of offence punishable under Sections-341/323/302/34 of IPC.

[5] On receipt of the aforesaid charge sheet and on perusal of the same, the Judicial Magistrate, First Class, Dharmanagar pleased to take cognizance of the offences punishable under Sections- 341/323/302/34 of IPC against the accused-person and copies of the incriminating documents were supplied to the accused person 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.

[6] Thereafter, receipt of the case record on commitment since accused Jamal Uddin was reported to be died, his name was struck off and subsequently, upon hearing both sides on the point of framing of charge being prima facie satisfied charges under Sections-341/323/302 read with Section-34 of IPC in three heads was framed against 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.

[7] During the course of trial to prove the accusation, 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 evidence adduced by the prosecution, the accused-appellant was examined under Section-313 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 prosecution has been able to prove the charge under Section-302 read with Section-34 of Indian Penal Code against the accused-person for committing offence as stated above and passed the judgment and order of conviction and sentence on 16.11.2019.

[8] The appellant herein, being aggrieved by and dissatisfied with against the impugned judgment of conviction dated 16.11.2019, the present appeal has been preferred by the accused-person, the appellant herein.

[9] Mr. S. Sarkar, learned senior counsel assisted by Ms. P. Chakraborty, learned counsel appearing for the accused-appellant 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 is 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. Sarkar, learned senior counsel has further argued that the examination of the appellant under Section-313 of Criminal Procedure Code was not done in accordance with law and the appellant was 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) it becomes crystal clear that the prosecution story is concocted and convicts were made a party to this false case by the informant. This is a cloud of doubt regarding the genesis for 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, the eye witness 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 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 call in loud speaker 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. Sarkar, learned senior counsel has further stated that after the incident, one Babul Uddin came at the spot and called PW-6 over telephone and thereafter PW-1 and the deceased 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. Farij 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 statement before to the Medical Officer as they were in habitant 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 and 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 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 allegedly victim of the alleged incident and who is also another eye witness 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 they both raised alarm then local people came out to help them 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 at the spot they found that both the

deceased and PW-1 were lying on the road with injuries and they both were conscious and the they narrated the whole incident to them. He has further submitted that the convict left the place before their arrival. No attempts were made on the part of the local people to bring the matter into the notice of the people after leaving the spot by the accused-persons. But, the learned trial Court did not consider the same at the time of appreciation of the evidence.

[17] There exists 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 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 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-appellant from his own views deviating from the mandate of law. There was no whisper in the evidence nor any witness has disclose that there is a conspiracy nor there was prior meeting of minds, but the court below has appreciated the evidences and came to a conclusion that there was presence of conspiracy.

[20] It is pertinent to mention here 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 prosecution story said Babul Nath sustained injuries due to the assault of the accused person. 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 eye witness of the alleged incident and also an injured person, he did not mention the name of the present convict-appellant during his deposition.

[21] PW-1 in his deposition has specifically stated that the incident took place on 13.09.2014 at about 9.00pm 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 thorugh 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. There after they stop their bike and Martuj uddin Ahmed demanded money saying that they used to deal with illegal business 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. Suddenlty Martuj Uddin asked his associates to attack them and immediately Martuj uddin gave a blow at the head of Amirul Hussain by means of wooden file. Thereafter, all of them feel down. The other associates were Kairul Hussain, Jamal Hussain and one Anowar. Two other persons were there. They were one Kabir and Dashim and they were to some extent ahead and they did not participate in the offence. He was assaulted by Jamal by means of a lathi. Kairul, Jamal, Anowar 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 evidence that the present convict appellants were not associates of accused Martuj Uddin Ahmed. It is further evidence that the present convict-appellants did not participate in the alleged offence in any manner in killings Amirul. Insofar as injured Babul Nath is concerned he is surviving, thus offence under Section- 302 does not attract against the appellant.

[23] PW-1 is the sole eye witness 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 injury of the deceased, PW-7, Dr. Subrata Biswas in his deposition before the trial Court stated that he found one hematoma in Occipitral region which was measuring 2cm x 1cm with a history of no- contact. CT scan 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 the 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 appreciation of the evidence of the PW- and PW-6.

[28] As per statement of PW-1, one Babul Uddin came and Babul Uddin telephoned Joyrul Islam (PW-6), the brother of deceased but, the said Babul Uddin neither examined by the I.O. nor he has cited as witness during filling of charge-sheet after completion of investigation. The telephone number of Babul Uddin 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 seized any injury report of PW-1. If PW-1 was treated at Kadamtala PHC and if he sustained any 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 place of occurrence [P.O. for short] and its index are 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 were 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 seizure list which was marked as Exbt.13. But, Babul Nath though cited as witness of the charge-sheet, he 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, from the medical report of PW-1 suggests that he was brought by one Nurul Haque on 14.09.2014 at 7.40pm in the Kadamtala PHC i.e. after 19 hours of the alleged incident. As such, the statements of PW-6 and medical report of PW-1 are contradicting each other.

[31] From the injury report of PW-1, it would be further evident that one Nurul Haque, maternal brother of PW-1 who brought the injured Aawar Hussain (PW-1) in the Kadamtala PHC had not been cited as witness by the I.O. during filing the charge-sheet or the prosecution did not examined 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 branch of trees. The branch of 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 hand sketch map the place of occurrence situates in front of entrance of the house of Ala Uddin Choudhury and Bachit Ahmed Choudhury and the distance in between the P.O. and entrance of 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 place of occurrence is proved false.

[34] The learned trial Court has passed this impugned judgment and order of conviction in total violation of principles of natural justice. 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 trial, it would be very difficult for this Court to believe the projected case of the prosecution. It is 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 are 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 above analysis, we are of the view that the prosecution has failed to establish their projected case and consequently the instant appeal is allowed. 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 appellant, namely Khairul Hussain Choudhury, shall be released forthwith, if not wanted in connection with any other case.

[37] 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.

          JUDGE                                                         JUDGE




A.Ghosh