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2003 DIGILAW 872 (PAT)

Md. Jainuddin v. State Of Bihar

2003-08-19

CHANDRA MOHAN PRASAD, PRABHAT KUMAR SINHA

body2003
Judgment CHANDRA MOHAN PRASAD, J. 1. By judgment dated 6th January 2000 passed by the 3rd Additional Sessions Judge, Begusarai in S.T. No. 218 of 1999/T. No. 21 of 1999, the sole appellant Md. Jainuddin stands convicted under Section 302 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- (five thousand) and, in default of payment of fine, to suffer rigorous imprisonment for six months. 2. The prosecution case, as appearing in the fardbeyan (Ext. 4) of the informant Jantun Khaton (PW 5), wife of deceased Karmuddin Mian as recorded by S.I., S.D. Singh of Khodawandpur Police Station on 17th February 1999 at 11.30 a.m in Khodawandpur State Dispensary is that her husband (the deceased) was working as a tailor at Kolkata and he maintained his family by that income. The informant alleged in her Jardbeyan that her bhaisur Jainuddin (the appellant) was separate from the deceased and had his mess separate but the family of both the brothers were living in the same origan. In absence of the deceased, the appellant and her mother-in-law were abusing and harassing her because they wanted some money from the earnings sent by the deceased from Kolkata, but the informant was unable to spare any amount as the sum itself was not sufficient for the maintenance of herself and her children. That day (17th February 1999), they had come home from Kolkata and soon after he kept his bag in the house, the appellant complained him (the deceased) against the informant The deceased replied that the appellant was levelling false allegation and then both the brothers entered into a quarrel. In course of quarrel, the appellant went to his room and brought a dagger concealing the same and gave 2/3 blows to the deceased due to which the deceased received bleeding inquires on his chest and abdomen. Hearing the informants cries, Md. Nizam, Wall Mohammed, Saddiqe Mian and Md. Islam had come there and they took the deceased to Khodawandpur State Dispensary. There the doctor advised to take him to Begusarai and from there to PMCH, Patna and while he was being carried to PMCH, Patna from Begusarai. he succumbed to the injuries in the way at Samastipur. 3. The prosecution examined as many as ten witnesses in this case. There the doctor advised to take him to Begusarai and from there to PMCH, Patna and while he was being carried to PMCH, Patna from Begusarai. he succumbed to the injuries in the way at Samastipur. 3. The prosecution examined as many as ten witnesses in this case. PW 5 Jantun Khatoon is the informant herself. PW 1 Md. Ahmad Hussain, PW 2 Dildar Hussain, PW 3 Md. Farid. PW 4 Md Zahir, PW 6 Md. Murtaza and PW 7 Md. Suleman are the witnesses to the occurrence. PW 8 Dr. Nandlal Paswan is the doctor who examined the injuries on the deceased at the State Dispensary, Khodawandpur. PW 9 Dr. Md. Reyazul Mustafa is the doctor who conducted the Post Mortem Examination on the dead body of the deceased. 4. The informant (PW 5) deposed that on the fateful day at 10.00 a.m., she was in her house and her husband (decreased) had come from Kolkata where he worked as a tailor. She further deposed chat her bhaisur Jainuddin (the appellant) started altercation with the deceased and in course of altercation, the appellant went to his house, brought a dagger and gave two blows on the chest and then pierced the dagger in the deceaseds abdomen. As a result of the assault, the deceased became unconscious and he fell down. Then she says that on hullo, the witnesses assembled and they took the deceased to the Hospital at Khodawandpur and from there he was sent to PMCH, Patna but he died in the way. She further deposed that the Daroga had come at Khodawandpur Hospital and had recorded her fardbeyan which was read over to her and then she had put her LTI on the same. The cross-examination of this witness is brief and she has deposed in her cross-examination that the quarrel took place in the angan and she had seen the appellant assaulting the deceased. She further deposed that she had gone to Khodawandpur Hospital and then to Begusarai Hospital from there but she had not gone to Patna. She further deposed that blood had fallen in the angan. There is nothing to discredit her testimony and she is fully truthful and reliable witness. 5. PW 1 Md. Ahmad Hussain deposed at para 3 of his evidence that the deceased was his memera bahnoi and his house situated at a distance of 10 Laggis from his house. She further deposed that blood had fallen in the angan. There is nothing to discredit her testimony and she is fully truthful and reliable witness. 5. PW 1 Md. Ahmad Hussain deposed at para 3 of his evidence that the deceased was his memera bahnoi and his house situated at a distance of 10 Laggis from his house. He further deposed that he had learnt that the deceased had come from Kolkata, hence he had gone to meet him and it was at 10.00 a.m. that day when he went into the angan of the deceased and saw that a quarrel was going on between the deceased and the appellant. He further deposed that in course of that quarrel, the appellant went into his house, brought a dagger and gave two blows on the chest and one blow on the abdomen of the deceased. Receiving the blows, the deceased fell down. Then this witness says that he Md. Murtaza (PW 6), Md. Dildar Hussain (PW 2), Md. Zahir (PW4) and Md. Zahid Khan took the deceased to Khodawandpur State Dispensary but from there, he was referred to Patna and while the deceased was being carried to Patna, he died in the way at Samastipur. At para 2 he says that the deceased and appellant were full brother. There is nothing in his evidence to discredit his testimony and he corroborates the informant, supporting the prosecution story on all material points. 6. Likewise, PW 2 Dildar Hussain has stated to have come to the deceaseds house on hearing nulla while this witness was going to his field and on going into the angan of the deceased, he says to have seen the quarrel between the appellant and the deceased. He also says that in course of quarrel, the appellant had brought a long dagger from his house and gave two blows on chest and one blow on abdomen of the deceased. He says that the deceased was seriously injured and while being taken to Patna, he died in the way at Samastipur. At para 3 of his cross-examination, he says that in course of assault, he tried to catch hold of the hands of the assailant but he could not be successful, and that he could catch hold of the appellants hands only after the blows had already been inflicted. Thus, he is a very probable witness to the occurrence. 7. At para 3 of his cross-examination, he says that in course of assault, he tried to catch hold of the hands of the assailant but he could not be successful, and that he could catch hold of the appellants hands only after the blows had already been inflicted. Thus, he is a very probable witness to the occurrence. 7. PW 3 Md. Farid, PW 4 Md. Zahir, PW 6 Md. Murtaza and PW 7 Md. Suleman, they also have deposed to have arrived at the deceaseds house on hearing hulla and then saw that an altercation was going on between the two brothers. i.e., the deceased and the appellant. All these witnesses say that in course of altercation, the appellant went into his house, brought a dagger and gave two blows on deceaseds chest and one blow on his abdomen. Then these witnesses say that the deceased was taken to Khodawandpur State Dispensary, from there to Begusarai and then he was further being taken to Patna, but he died in the way. PW 3 at para 3 deposed that he had tried to intervene in the quarrel but, in the mean time, the appellant brought a dagger from his house. They aiso deposed that after giving the blows, the appellant had tried to flee away but he was apprehended by the villagers. The evidence of these witnesses inspire full confidence and they are fully reliable. 8. PW 8 Dr. Nandlal Paswan deposed that he examined the deceased on 17th February 1999 and found the following injures on his person : "(i) A penetrating wound over left lumber region of abdomen with protruding omentum size about 1-1/2" x 1" x prfetronial cavitgy. (ii) An incised wound over right lower chest transversely size about 5" x 2" x muscle deep. (iii) An incised wound over left side of upper chest 1/2" x 1/2" x skin deep. The patient was referred to Sadar Hospital. Begusarai for further treatment. All the injuries were simple in nature, except injury No. 1 all out nature of which opinion can be had from the concerned surgeon of Sadar Hospital, Begusarai. Injuries were caused by sharp pointed weapon like "dagger"." 9. The patient was referred to Sadar Hospital. Begusarai for further treatment. All the injuries were simple in nature, except injury No. 1 all out nature of which opinion can be had from the concerned surgeon of Sadar Hospital, Begusarai. Injuries were caused by sharp pointed weapon like "dagger"." 9. From the nature and dimension of the injuries, as mentioned by this doctor, it appears that he has mentioned the length and breadth of the injuries but the depth of the injuries has not been mentioned by measurement. 10. PW 9 Dr. Md. Reyazul Mustafa is the doctor who held the post-mortem examination on the dead body of the deceased. He deposed that on 18th February 1999, he conducted the autopsy on the dead body of the deceased and found the following ante-mortem injuries : "1 (i) Bleeding from nose present. (ii) Incised wound 4-1/2/" x 2-1/2" x 3" deep on the lower part of right side of chest. (iii) Incised wound 1-1/2" x 1/2" x 1-1/2" deep on the left side of upper part of chest. (iv) Incised wound 1-1/2" x 1/2" x 3-1/2" deep on the lower part of left side of abdomen near the left illiac crest. (v) Injection wound 1/16" x 1 /16" at the left cubital fossa. 2. On opening of the skull, no internal injury found. On opening of the chest, the left side of chest cavity was full of blood and clots with left lung severely punctured and damaged. The muscle below the skin of injury No. (iii) was haemotosed and the rib (coastal cartilage) was severed at middle. The heart and right lung escaped injury. 3. On opening of abdomen, the whole of upper part of abdomen was filled with blood and clots and the liver was severely punctured. On further opening of the lower abdomen, the left side was also filled with blood and clots. Left kidney was found badly punctured and damaged. 4. All the above injuries were ante-mortem, grievous and dangerous to life caused by sharp cutting object, may be dagger. Cause of death was shock and haemorrage due to damage to the vital organs, time elapsed since death, within 12 to 24 hours from the time of postmortem examination. 11. From the evidence of the two doctors, it appears that Dr. All the above injuries were ante-mortem, grievous and dangerous to life caused by sharp cutting object, may be dagger. Cause of death was shock and haemorrage due to damage to the vital organs, time elapsed since death, within 12 to 24 hours from the time of postmortem examination. 11. From the evidence of the two doctors, it appears that Dr. Nandlal Paswan (PW 8) who had examined the injuries first at State Dispensary, Khodawandpur, had based his opinion on external examination of the injuries and he did also not mention by measurement the exact depth of the injuries and it appears that due to that, he opined the injuries being simple in nature. But considering the evidence of Dr. Md. Reyazul Mustafa (PW 9) who had conducted the autopsy on the dead body of the deceased, it appears that he was able to examine the injuries in detail and he has also mentioned with measurement the depth of the injuries. He has mentioned the effect of the injuries affecting left lung, liver and left kidney which were found severely punctured and damaged and on the basis of these findings, he came to the opinion that the injuries were grievous and dangerous to life. 12. PW 10 Shyambabu is the Investigating Officer of the case. He deposed that on 17th February 1999, S.I., ShivBadan Singh had recorded the informants fardbeyan at State Dispensary, Khodawandpur. " The Jardbeyan has been proved as Ext. 4. He further deposed that as the IO, he had recorded the further statement of the informant. He also deposed that injured Karmuddin (the deceased) was not in a condition to give his statement at that time. He states to have inspected the PO which was angan of the informants house. He further deposed that he was in the angan and he had seized the blood clots as exhibit. He has given the boundary of the PO. He prepared the inquest report of the dead body of the deceased. He also says that he had issued requisition for the P.M. Examination of the dead body. Any kind of omission or contradiction in the evidence as against the police statement of the prosecution witnesses has not been brought on the record. 13. He prepared the inquest report of the dead body of the deceased. He also says that he had issued requisition for the P.M. Examination of the dead body. Any kind of omission or contradiction in the evidence as against the police statement of the prosecution witnesses has not been brought on the record. 13. From the ocular evidence, as brought by the prosecution and as corroborated with the medical evidence, it is established beyond doubt that the appellant, by means of dagger, caused the injuries to the deceased and the deceased died as result of the same. During the argument, the learned counsel for the appellant did also not challenge the factum of assault as proved by the prosecution witnesses. But the learned counsel argued mainly on the point that the offence committed by the appellant falls under Exception( 4) of Section 300 of the Indian Penal Code. The learned counsel submitted that it is the admitted case of the prosecution that the two brothers were quarreling in the angan and in course of that quarrel the appellant brought a dagger and assaulted the deceased. Hence, the learned counsel argued that it was an assault committed without any premeditation and in a sudden fight in heat of passion upon a sudden quarrel. It was further argued that the offence will come under Exception (4) of Section 300 of the Indian Penal Code and. therefore, the offence is not a culpable homicide amounting to murder. 14. The learned APP opposed the submission and he argued that under the circumstances of the case, the offence comes clearly under Section 300 of the Indian Penal Code and, hence, it is a culpable homicide amounting to murder. 15. In support of his argument, learned- counsel for the appellant cited a decision rendered in the case of Nathu v. State of Rajasthan, 1986 Cri LJ 413. The facts under the cited authority related to causing of injuries by one brother to the other brother, when both the full brothers were fighting with each other. Before the fight, some altercation had taken place and then hearing the reply of one brother (Kishore) the other brother (Nathu) became angry. While Kishore and Nathu were fighting with each other, they came to a "pol" where Kishore fell down on the ground and Nathu inflicted knife blows to him. Kishore had three injuries on his person. Before the fight, some altercation had taken place and then hearing the reply of one brother (Kishore) the other brother (Nathu) became angry. While Kishore and Nathu were fighting with each other, they came to a "pol" where Kishore fell down on the ground and Nathu inflicted knife blows to him. Kishore had three injuries on his person. All the injuries were incised wounds. Injury No. 1 was just above the left iliac crest. Injury No. 2 was on the left chest anteriorly in between 11th and 12th ribs. Injury No. 3 was on the back 2-1/2" away from the left posterial region angle. The injured had died of these injuries. Under these facts, it was held in the case of Nathu v. State of Rajasthan, (supra) that the offence committed by the accused was an offence under Exception 4 of Section 300 of the Indian Penal Code. 16. Learned counsel for the appellant argued that the facts of this case are quite similar to the facts of the cited decision and, therefore, this case will also come under Exception 4 of Section 300 of the Indian Penal Code. But on consideration of this case, when compared to the facts of the case as considered in the cited decision, we find remarkable differences. In the frets of the cited case, after an altercation, a fight had taken place and both the brothers fighting had gone to a "pol" where one brother fell down and the other gave knife blows, whereas in the instant case before us, the occurrence had taken place in the way that the appellant and the deceased were altercating in the origan over some household affairs and in course of that quarrel, the appellant went into his house, brought a dagger and dealt two dagger blows on the chest and one blow on the abdomen of the deceased. It appears that the altercation had been picked up or initiated by the assailant himself and there is nothing on the record to show that the deceased had done anything causing any sudden or grave provocation to the appellant. It appears that the altercation had been picked up or initiated by the assailant himself and there is nothing on the record to show that the deceased had done anything causing any sudden or grave provocation to the appellant. Exception 4 of Section 300 of the Indian Penal Code reads as under : "Culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 17. In the facts of this case, it has been proved that in course of altercation, the appellant went into his house, brought a dagger and gave three dagger blows to the deceased who was unarmed. There is nothing to show that during the altercation, any sudden or grave provocation was caused by the deceased to the appellant. The act of the appellant going to his house and bringing a dagger for the purpose of assault indicates some kind of thinking and premeditation in his mind for preparing for committing the assault. It is not that sort of case that one of the parties was already armed, while the fight was going on and in course of that fight, some grave and sudden provocation occurred due to which, the assailant lost control over himself and he caused the assault under that provocation. Under Exception 4 of Section 300, IPC, a culpable homicide is not murder, if the offender has not taken undue advantage or acted in a cruel or unusual manner. In this case, the appellant had gone to his house, brought a dagger for assault upon the deceased who was unarmed. Thus, he has taken undue advantage of the situation. PW 9 who conducted the autopsy on the deceased, has found that the left lung, liver and the left kidney were severely punctured and damaged and the injuries were grievous and dangerous to life. The causing of such injuries under the facts of the case, is found to have been caused by cruel hands in cruel manner. In such view of the matter, we are of the opinion that the offence committed by the assailant does not fall under Exception 4 of Section 300 of the Indian Penal Code. The causing of such injuries under the facts of the case, is found to have been caused by cruel hands in cruel manner. In such view of the matter, we are of the opinion that the offence committed by the assailant does not fall under Exception 4 of Section 300 of the Indian Penal Code. The learned trial Court has rightly convicted the appellant under Section 302 of the Indian Penal Code which warrants no interference. 18. In the result, this appeal is dismissed and the judgment of conviction and sentence are hereby upheld. However, it is observed that the amount of fine (Rs, 5,000/-), if realised, will be paid to the informant by way of compensation. PRABHAT KUMAR SINHA, J. 19 I agree.