Kailash Gour & Ors vs State Of Assam

2. The appeal was initially heard by a Division Bench of this Court comprising S.B. Sinha and H.S. Bedi, JJ., who differed in their conclusions. While S.B. Sinha, J. acquitted the appellants giving them the benefit of doubt, Bedi, J. upheld their conviction and sentence and consequently dismissed the appeal. The appeal has, in that backdrop, been listed before us to resolve the conflict.

3. Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin (PW2) a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house. Md. Mustafa Ahmed (PW3), one of the two sons of Mohd. Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed (PW4) was together with one Zakir, said to be a close relative, was sleeping in the kitchen. Sahera Khatoon wife of Mohd. Taheruddin and his daughters Hazera Khatoon, Jahanara 2 Begum, Samana Khatoon and Bimala were sleeping in another room. A mob allegedly comprising nearly twenty people entered the house of Mohd. Taheruddin and forcibly opened the door. Around the same time another house belonging to one Nandu situate at some distance from Mohd. Taheruddin's house was on fire. The prosecution case is that Md. Mustafa Ahmed (PW3) heard accused Gopal Ghose calling for `Munshi' which ostensibly is also how Mohd. Taheruddin was known. Md. Mustafa Ahmed (PW3) is said to have replied that Taheruddin was not at home. Apprehending danger, Md. Mustafa Ahmed escaped from the house but not before Gopal Ghose had injured him with the help of a spear. On his way out Md. Mustafa Ahmed is said to have recognised two persons standing outside the house allegedly armed with dao, dagger etc. Out of the house and in the field, he saw his father Mohd. Taheruddin coming homeward. Md. Mustafa Ahmed told him not to do so for he may be killed by the mob that had attacked the house. Taheruddin paid heed to the advice and watched the incident from a distance. According to his version Rahna Gour, one of the members of the mob, shot 3 an arrow at him which hit his right hand. After the crowd had left the place he shouted to attract the attention of an army vehicle that was passing by and reached the spot only to find his daughters Bimala and Hazera lying dead and his wife Sahera Khatoon lying injured in the middle of a paddy field near the house. He carried her home where she died after some time. Zakir Hussain who was sleeping along with Md. Hanif Ahmed (PW4) in the kitchen was also injured by the mob. According to the version of Md. Hanif Ahmed (PW4) three accused persons, namely, Kailash, Hari Singh and Ratan entered his room and took away Zakir with them. Hanif is said to have stepped out of his house to take shelter behind the banana trees growing near the house and witnessed the entire incident from there. According to his version Gopal Ghose, Kailash Gour, Gundulu Gour, Krishna Gour and Harendra Sarkar assaulted his mother while his sister Hazera Khatoon was attacked by Budhuram Timang, Hari Singh and Rahna. Bimala, the other sister, was similarly assaulted by Gopal, Ratan Das and Harendra Sarkar. The rest of the sisters, however, managed to escape unhurt.

4. The injured were then taken to Nagaon Civil Hospital by the police who had also arrived at the place of occurrence on receipt of intimation about a house having been put on fire in the neighbourhood. The dead bodies were removed in the army vehicle, while Zakir Hussain and Md. Mustafa Ahmed were medically examined by the medical officer who found the following injuries on them:

3) Left little finger was severed at the bone of the proximal phalange.

5. The post-mortem examination on the dead bodies was conducted by Dr. Madhusudhan Dev Goswami (PW1) who reported incised wound on the right upper neck of Hazera Khatoon and two incised wounds one on the neck and other on left upper neck of Bimala Khatoon. Similarly, injuries were also noticed by the doctor on the dead body of Sahera Khatoon. After completion of the investigation the police filed a charge sheet against 14 persons out of whom 13 were named in the First Information Report. The accused persons were charged with offences punishable under Sections 302, 326, 324, 323, and 448 read with Section 34, IPC. The accused pleaded not guilty to the charges and claimed a trial. Accused Gopal Ghose, it is noteworthy, passed away during the trial.

6. By its judgment and order dated 18th June, 2005, the trial Court convicted 8 out of 14 persons for the offence of murder and sentenced them to undergo imprisonment for life and a fine of Rs.2,000/-, and in default of payment to 6 suffer rigorous imprisonment for six months. The High Court has, as seen earlier, upheld the conviction of the appellants while acquitting Ratan Das, Gundulu Gour and Budhu Timang giving them benefit of doubt. Two appeals were filed against the said judgment and order, out of which viz. Crl. Appeal No.907 of 2006 filed by Harendra Sarkar has since been dismissed as abated upon the death of the appellant in that appeal. The present criminal appeal is, therefore, relevant only to appellants Kailash Gour, Krishna Gour, Hari Singh Gour and Rahna Gour.

8. The deposition of Dr. Madhusudhan Dev Goswami (PW1) who conducted the post-mortem on the dead bodies of the three unfortunate victims leaves no manner of doubt that they suffered a homicidal death. The nature of the 7 injuries found on the dead body of the deceased Smt. Sahera Khatoon and her two minor daughters Hazera Khatoon aged 7 years and Bimala Khatoon aged 3 years manifestly show that they suffered a homicidal death. To that extent we see no reason to interfere with the findings recorded by the trial Court and the High Court in appeal. It is noteworthy that even in the dissenting judgments delivered by S.B. Sinha and H.S. Bedi, JJ., their Lordships are unanimous on the cause of death of the three victims. The question, however, is whether the prosecution has established beyond a reasonable doubt that the appellants were the perpetrators of the crime. The prosecution has, in that regard, placed reliance upon the deposition of Mohd. Taheruddin (PW2) and his two sons named Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4). We shall refer in some detail to the depositions of these three witnesses especially because while Sinha J. has held that only Md. Hanif Ahmed (PW4) claims to be an eye witness to the occurrence, Bedi J. has taken the view that all the three witnesses were eye witnesses to the incident.

9. Mohd. Taheruddin (PW2) has in his deposition stated that the accused persons were known to him as they live within one mile from his village. On the date of occurrence he was guarding harvested paddy in the field to the West of his house. In his house his sons Md. Mustafa Ahmed and Md. Hanif and Zakir Hussain, a young boy, were sleeping. In another room of the house were his wife Sahera Khatoon and daughters Hazera Khatoon, Jahanara, Bimala and Samana Khatoon. He also used to sleep in that very room but on the date of occurrence he was in the field. He saw a group of 10-12 men coming from the North of his homestead and another group of 10-12 men coming from the South. They assembled in front of his house and entered the premises. Accused Gopal Ghose called out his name and asked if `Munshi' was at home. Hearing this, the witness started moving towards his house as there was a commotion. In the meantime his eldest son Mustafa Ahmed came and advised him not to do so as people were being attacked there. The boy ran towards the West through the paddy fields out of fear. The witness came close to the house to have a look and saw the mob striking the walls of 9 his house with dao and lathi. A couple of youth were running away towards the West. Rahna Gour shot an arrow at the witness which hit the witness on his right hand. The accused came out from the house on the road, blew whistles and went away. The witness then reached his house and raised an alarm. An army vehicle also arrived. He saw the injured Bimala who had died. He also saw Hazera lying dead besides the road to the house. He took Bimala on his shoulder and stood on the road. He then found his wife Sahera Khatoon lying injured in the paddy field near the house and carried her home. She died immediately after being given water. His son Mustafa and Zakir sustained cut injuries. The Army personnel saw all this. Police was also with them. The Army sent the injured to Nagaon Civil hospital and took the dead bodies to Doboka Police Station.

21. The incident, according to the witness, happened on a moonlit night which enabled him to identify the assailants. The witness claimed that the police arrived at the place of occurrence in the meantime. The witness and his father searched for his mother and sisters with the help of a torch in the field and discovered their bodies within 3-4 minutes. While both the sisters had died, his mother died 10 minutes 19 later. Police, according to the witness, came on the following day and interrogated them. FIR was written at the police station on the dictation of the witness and was signed by him. Witness further stated that he did not know whether his father had lodged any FIR to the police. Finally the police took a written report from him and his father. The witness was confronted with certain significant omissions in the statement made under Section 161 Cr.P.C.

31. We are conscious of the fact that three innocent persons including two young children have been done to 38 death in the incident in question which needs to be deprecated in the strongest terms but unless proved to be the perpetrators of the crime beyond a reasonable doubt, the appellants cannot be convicted and sentenced for the same. We accordingly allow this appeal and acquit the appellants giving them the benefit of doubt. They shall be set free forthwith unless required in connection with any other case.