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2005 DIGILAW 390 (GAU)

Aftar Ali v. State of Assam

2005-05-18

B.LAMARE, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard Smti. Purabi Dutta Medhi, learned Amicus Curiae for the Appellants and Smti. B. Saikia, learned Public Prosecutor for the Respondents. 2. This appeal is directed against the judgment and order dated 15.11.1999 passed by the Sessions Judge, Karimganj in Sessions Case No. 11 of 1996 whereby the accused Appellants have been convicted and sentenced. 3. Abdul Sattar P.W. 1 lodged a written FIR on 31.10.1994 before the OC Patharkandi Police Station stating inter-alia that on the date of occurrence around 6 AM while his younger brother Shakhawat Ali was ploughing his own field, the two accused Appellants who are also his own brother and cousin namely; Aftar Ali and Amir Uddin came to the field and started assaulting Shakhawat Ali whereupon the latter fled the scene by crossing the river. The two accused persons, however, chased him and assaulted him as a result of which Shakhawat sustained injuries. He was removed to hospital where he succumbed to the injuries. Police made usual investigation and thereafter, submitted charge-sheet against the two accused persons who were tried by the Sessions Judge, Karimganj in Sessions Case No. 11 of 1996. As many as seven witnesses have been examined on behalf of the prosecution and the defence has also examined one witness and vide impugned judgment the learned trial Court convicted the two accused Appellants under Section 302/34, IPC and sentenced them to imprisonment for life and to pay a fine of Rs. 2,000/- each in default further imprisonment for one month each. Hence the present appeal. 4. On the question whether the incident as alleged by the prosecution had taken place on the date and time, at the place and in the manner alleged by the prosecution, there is evidence of Abdul Sattar P.W. 1, Fakaruddin P.W. 2, Nooruddin P.W. 3, Sufia Begum P.W. 4 and Smti. Shru Bibi. As a matter of fact even the defence witness Hussain Ahmed D.W. 1 has also deposed about the incident taking place on the date of occurrence between the deceased and the accused persons. D.W. 1 has, however, given a different version of the story as regards the manner in which the incident took place. 5. Shru Bibi. As a matter of fact even the defence witness Hussain Ahmed D.W. 1 has also deposed about the incident taking place on the date of occurrence between the deceased and the accused persons. D.W. 1 has, however, given a different version of the story as regards the manner in which the incident took place. 5. In the present case, so far the death of the deceased in the above incident is concerned there is oral as well as medical evidence on record and the same has not been disputed. Dr. Swapan Kr. Sen P.W. 6 conducted the autopsy over the dead body and found as follows: EXTERNAL APPEARANCE: An average built Muslim male aged about 35 years whose rigor mortis was present. Eyes half opened, mouth half opened. (1) There is one deep penetrating wound about 2½" x 1" x 3" deep on the left posterior chest below the 9th rib on the posterior aspect cutting the adjoining muscles, vessels, lungs. (2) There is one deep penetrating wound about 1" x ½" x4" deep on the medial aspect of the left scapula below the 3rd rib on the posterior aspect of the trunk cutting the adjoining muscles, vessels and lungs. In the opinion of the doctor, all the injuries were ante-mortem and the death was due to shock and haemorrhage as a result of the injuries sustained. The doctor has further opined that either of the injuries was sufficient to cause death in ordinary course of nature as we find that the left lung was cut. 6. The informant Abdul Sattar P.W. 1 has fully supported the prosecution story as stated in Para 3 above. According to this witness the land in question belonged to the deceased Shakhawat and the incident took place while the deceased was ploughing the said land. P.W. 1 has got land contiguous to the land of the deceased and at the relevant time he was also ploughing his own land along with his sons Fakaruddin P.W. 2 and Nooruddin P.W. 3. This witness has stated that while the deceased was ploughing his land the two accused persons came to the spot and obstructed and prevented the deceased from ploughing the land and accused Aftar Ali assaulted Shakhawat whereby Shakhawat ran towards his house by crossing the river. It may be mentioned here that the land is situated on the riverside. This witness has stated that while the deceased was ploughing his land the two accused persons came to the spot and obstructed and prevented the deceased from ploughing the land and accused Aftar Ali assaulted Shakhawat whereby Shakhawat ran towards his house by crossing the river. It may be mentioned here that the land is situated on the riverside. The two accused persons, however, chased the deceased and they also crossed the river. P.W. 1 and P.W. 2 also followed their brothers. The two accused persons somehow overpowered the deceased and accused Amiruddin dealt knife blows on the person of the deceased. The accused persons thereafter ran away. The injured was removed to hospital but he died on the way. P.W. 1 lodged the FIR. Fakaruddin P.W. 2 and Nooruddin P.W. 3 the two sons of P.W. 1 are the other eye-witnesses to the occurrence as they were with their father ploughing the nearby field and they saw the incident. They have fully supported the statements of P.W. 1. 7. Sufia Begum P.W. 4 is the widow of the deceased. She is not a witness to the occurrence and on being informed she came to the place of occurrence and found her husband lying dead. Likewise Smti Shru Bibi P.W. 5 a common relation to both the deceased and the accused came to the place of occurrence on hearing the halla and saw the two accused persons running towards their house. After proceeding further she found the deceased lying with bleeding injuries. The witness also found P.W. 1, P.W. 2 and P.W. 3 at the spot. 8. In the present case we find that three eye-witnesses to the occurrence are common relation. P.W. 1, the deceased as well as the accused Aftar Ali are all brothers. They have their separate lands and are leaving separately and as the incident had taken place on the land contiguous to the land of P.Ws. 1, 2 and 3 and this being a ploughing time they were the natural witnesses and they have deposed to that extent. The witnesses are not interested witnesses in the sense that they were common relations and related to both the accused and the deceased. The witnesses have been cross-examined at length but nothing has come out to show that these witnesses are deposing falsely. The witnesses are not interested witnesses in the sense that they were common relations and related to both the accused and the deceased. The witnesses have been cross-examined at length but nothing has come out to show that these witnesses are deposing falsely. The defence has, however, tried to bring out certain omissions in the FIR lodged by P.W.1. 9. The law is well settled that the FIR is not supposed to be an encyclopaedia containing all the minutest details. It maybe relevant to quote the following observations of the Apex Court in the case of Ratan Singh v. State of Himachal Pradesh (1997) 1 Supreme 4: Criminal Courts should not be fastidious with mere omissions in FIR since such statements cannot be expected to be a chronicle of every detail of what happened, nor to contain an exhaustive catalogue of the events which took place. The person lodging FIR might be fresh with facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing there from. Some may miss even important details in a narration quite often the police officer would record that the informant conveys without resorting to any elicitatary exercise. It is the voluntary narrative of the informant without interrogation which usually goes into such statement. So any omission therein has to be considered along with the other evidence to determine whether the facts so omitted never happened at all. 10. There is another aspect of the matter also. In the present case, although the two accused persons have exercised their right to keep mum/silent as regards the allegations and during their examination under Section 313 , Code of Criminal Procedure they have merely stated that the evidence are all false. They have not raised any specific plea, however, they have examined one defence witness in person of Hussain Ahmed, who has deposed that in the above incident a cross-case was filed against P.W. 1, P.W. 2 and P.W. 3 by the two accused persons. The existence of a cross-case was admitted by the witnesses although we do not find any other records to that effect. The existence of a cross-case was admitted by the witnesses although we do not find any other records to that effect. The evidence of D.W. 1 also shows that the incident took place while the deceased Shakhawat was ploughing in the field The witness, however, claims that the land belonged to the two accused persons and seeing the deceased ploughing over the field, the two accused persons protested whereupon the deceased as well as P.W. 1, P.W. 2 and P.W. 3 severely assaulted the accused persons for which a case was filed by them. Surprisingly enough, the two accused persons have not deposed a single word about the institution of a cross- case by them or assault on him. However, from the evidence of D.W. 1 the incident as well as the presence of the accused persons and the witnesses as well as the deceased at the place of occurrence stands well established. 11. Now coming to the evidence of D.W. 1 we find that this witness has not stated a single word as to how the deceased Shakhawat died or how he sustained injuries on his person. D.W. 1 confined to the alleged injuries on the two accused persons allegedly caused by the deceased as well as the prosecution witnesses. However, there is no corroborating evidence. No doctor has been examined to prove any injuries on the persons of the accused persons least about the nature of injures. In absence of any medical evidence or any other corroborating evidence or statement of dead persons (alleged victim) the trial Court rightly held that there was no injuries on the accused persons and the defence plea raised through D.W. 1 is not acceptable. The trial Court for the reasons mentioned in the impugned Judgment, has relied on the testimony of the eye-witnesses to hold that it was the two accused persons who assaulted and killed the deceased. Although the fatal blows were given by the accused Amir Uddin, we find that the common intention on the part of the two accused persons was writ large as they being armed, went together to the land of the deceased and obstructed Shakhawat Ali from ploughing his land and thereafter when Shakhawat Ali fled the scene both of them chased him even by crossing the river overpowered the deceased and while one was catching hold of the deceased the other dealt stabbed blows. 12. 12. In this case, a faint attempt was made by the learned Amicus Curiae by raising the plea of private defence of property by stating that the land belonged to the accused persons. Even if we accept for argument's sake that the land belonged to the accused persons and the deceased was ploughing over the land, the right of private defence of the property ceased the moment Shakhawat Ali fled the scene and crossed the river. There was no subsisting danger to their property but from the fact that the accused persons chased the deceased and killed him, the right of private defence of property is not available in the present case. 13. Now coming to the evidence of the three eye-witnesses we find that their evidence stands fully corroborated and supported by the medical evidence on record and the weapon used. The weapon of assault was seized by police on being produced by the accused Appellant Amir Uddin. Further the name of the assailants was reported to P.W. 4 and P.W. 5 immediately after the incident and it finds place in the FIR lodged immediately after the incident. P.W. 4 and P.W. 5 supported the above statements of P.W. 1, P.W. 2 and P.W. 3. P.W. 5 is also a common relation of the accused and the deceased and has also seen the two accused persons running away from the place of occurrence. The incident had taken place in the morning hours; as such the identity of the accused persons is not in challenge. 14. In view of the aforesaid, we accept the reasons given by the trial Court and hold that P.W.1, P.W. 2 and P.W. 3 are reliable witnesses and their evidence can be accepted as true and convincing. From the medical evidence on record we find that the injuries were sufficient to cause death in the ordinary course of nature cutting the vital organ of the body where the injury was caused and the nature of lethal weapons used and the facts and circumstances of the case where the accused persons chased the deceased, overpowered him and stabbed him all goes to show that the accused persons had the intention to cause death. 15. In the result, we find no merit in this appeal and the appeal stands dismissed. The fees of the Amicus Curiae is fixed at Rs. 2,500/- Appeal dismissed.