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2003 DIGILAW 31 (GAU)

Hadisali v. State of Assam

2003-01-20

AMITAVA ROY, P.P.NAOLEKAR

body2003
JUDGMENT P.P. Naolekar, C.J. 1. The accused Appellant is convicted for life imprisonment under Section 302 IPC and to pay a line of Rs. 1000/- and in default Rigorous Imprisonment for one year. The conviction was for causing death of Fridush Ali. 2. According to the prosecution, on the night of 12th February, 1996 Faria Begum, wife of deceased Firdush Ali was alone in her house. Her husband, deceased Firdush Ali, came back to the house at about 11 PM and found the accused Siddique Ali, a neighbour, beneath his bed. Siddique Ali was apprehended and other villagers were informed of his concealment in the house of Firdush Ali. Father of the accused Himmat Ali and his brother Hadis Ali, Mehtab Ali came to the house of the deceased armed with weapons. Himmat Ali, Mehtab Ali and Siddique Ali were acquitted by the Trial Court. (No appeal has been filed against their acquittal by the State). All these accused persons came to the house of the deceased and there was an altercation between them and the accused Hadish Ali gave a blow over the head of the deceased from the blunt side of his axe. Deceased Firdush Ali fell down on the ground and thereafter he was taken to the Hospital, wherein he succumbed to his injury on 13.2.96. 3. First information Report was lodged by Khashnur Ali, P.W.-3, on 13.2.96. Post Mortem on the body of the deceased was conducted by P.W.-1 Dr. Sribatsa Gopal Goswami, who found the following injuries: I aerated injury over the head, 3" in length into scalp deep. On deeper dissection, there is a fracture of parietal bone. On removal of bone there is haemorrhage in the membrane of brain. Haemorrhage inside the brain matters. The injuries are ante mortem in nature. According to P.W.-1 the death of the deceased was due to shock and haemorrhage as a result of the injury sustained by the deceased. 4. The prosecution amongst other witnesses examined P.W.-3 Khashnur Ali, who stated that the accused Hadish Ali hit his elder brother with the blunt side of an axe. Similar is the statement of P.W.-5 Farida Begum, who has also deposed that the accused Hadish Ali hit her husband on the head with the blunt side of an axe, as a result of the injury her husband fell down on the ground and thereafter he was taken to hospital. Similar is the statement of P.W.-5 Farida Begum, who has also deposed that the accused Hadish Ali hit her husband on the head with the blunt side of an axe, as a result of the injury her husband fell down on the ground and thereafter he was taken to hospital. 5. The statements of the eye witnesses have not been seriously challenged by the Counsel for the Appellant. The averment made by the learned Counsel for the Appellant is that in the facts and circumstances of the case, when there had been only one injury found on the deceased with the blunt side of the axe it can be very well be presumed that there was no intention to kill the deceased Firdush Ali, by the accused. Therefore, the conviction under Section 302 IPC is not maintainable and be converted into Section 304 Part II of IPC. 6. From the prosecution case and the statement of witnesses examined in the case, it appears that on the relevant date, Siddique Ali was found in the house of the deceased and when the villagers were called the accused along with Ors. went to the house of the deceased to get his brother out of the house of the deceased. There was some altercation between them. In the process the accused Hadish Ali gave a blow over the head of the deceased with the blunt side of the axe. From the evidence of Investigating Officer, Jadav Gogoi, P.W.-8, it appears that one of the tried accused Mehtab Ali had received injury on his head and he was sent for treatment to the Doctor. This fact indicates that at the spot where the incident took place there was some altercation between the accused persons and the deceased, which lend support from the statement of the P.W.-3, who had stated about the altercation between the accused persons and the deceased. Presence of accused at the place of incident appears to be because of the fact, that after getting information of confinement of his brother at the house of deceased the accused went to the house to rescue him and in the process some altercation took place, one of the person accompanying the accused has received injury and axe blow was struck by the accused. Had there been an intention on the part of the accused to kill the deceased it would have been very easy for him to use the sharp side of the axe for causing the injury. The fact indicates, that when the blunt side of the axe was used to hit the deceased there is reasonable possibility for our assumption that there was no intention on the part of the accused to cause such injury which may cause death of the deceased. 7. Taking into consideration all the aspects, we modify the sentence and conviction of the accused and convert from Section 302 IPC to Section 304 Part II IPC and sentence him to suffer Rigorous Imprisonment for seven years. The sentence of fine is confirmed. 8. The appeal stands partly allowed to the extent indicated above. Appeal allowed.