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2005 DIGILAW 782 (GAU)

Fazar Ali v. State of Assam

2005-11-17

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. A.S. Choudhury, learned Sr. Counsel for the Appellants and Mr. D. Das, learned Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 18.4.96 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 56/90 whereby the present Appellants were convicted under Sections 304/326 of the Indian Penal Code, and resultant sentence handed down to them to suffer rigorous imprisonment for seven years and sentenced to pay a fine of Rs. 500/- each, in default of payment of fine, the accused shall undergo further rigorous imprisonment for three months. Accused Appellant Fazar Ali has been further sentenced to undergo rigorous imprisonment for two years with a fine of Rs. 500/- for offence Under Section 326 I.P.C. in default of payment of fine he would undergo further rigorous imprisonment for two years when sentences were directed to run concurrently, have been assailed in this Criminal Appeal. 3. The prosecution case in a nutshell is that on 23.3.1986 one Sayed Ahmed lodged F.I.R. before the police stating inter alia that on that day while his cousins had been ploughing in their paddy field at Amguri as many as seven accused persons named in the FIR armed with lathis and daggers attacked them and assaulted them causing serious injuries as a result one Omar Ali amongst them sustained grievous injuries and therefore he was taken to Hospital where on the way he succumbed to his death. 4. The learned Sessions Judge proceeded with the trial against as many as six accused persons and during trial as many as 14 witnesses were examined by the prosecution. On conclusion five accused Appellants before us were convicted under Section 304 IPC and sentenced them to imprisonment for seven years and a fine of Rs. 500/- each. They were also convicted under 326 IPC and sentenced imprisonment for two years and fine of Rs. 500/-. Accused Habibar Rahman however was acquitted of the charges. Hence the present appeal. 5. So far the death of Omar Ali is concerned, we find that there is oral as well as medical evidence on record as that P.W.1 Dr. Nabashyam Das held the inquest over the dead body and found as follows: External appearance: Average built, Multiple incised wounds. Antemortem in nature. Rigour mortis present. Hence the present appeal. 5. So far the death of Omar Ali is concerned, we find that there is oral as well as medical evidence on record as that P.W.1 Dr. Nabashyam Das held the inquest over the dead body and found as follows: External appearance: Average built, Multiple incised wounds. Antemortem in nature. Rigour mortis present. Cranium and Spinal Cord: An incised wound on mid line posteriorly on the parito occipital region 4" x 1" X bone cut X brain cut with blood clot. Occipital lobe enterior posteriorly incised, blood clot present. Others normal, Muscle Joint and bones: Injury-Multiple on upper extrimity, right shoulder and scalp. Decease or deformity: Left upper extremity, fore arm almost severe from elbow joint by a large incised wound. Fracutre: fracture lower end of radius and ulva, upper end of humorous. More detailed description: Left upper extremity (i) Incised wound 6" in length with large gaping (3" app) exposing muscle and cutting the bones around left elbow joint. (ii) Incised wound over left deltoid 5" placed across the muscles deep into the upper end of humerous causing fracture of the bone. (iii) Incised wound in between injury No. (1) and (ii) on middle of arm posteriorly 3" in length X deep to the muscles. (iv) Scalp as described already. (v) Incised wound over right trapezius about the elevate 3" in length upto the bone. (vi) Incised wound over right shoulder 1 1/2 "injury in the bones. (vii) Incised wound right scepular region 1/2 "X skin deep. Opinion: Death In my opinion is due to haemorrhage caused by multiple incised wounds leading to shock and cardio-respitory failure. The injury were caused by sharp weapon. The injury on the scalp and brain was itself sufficient to cause death, The injured could have survived for an hour. 6. In the present case, we also find in the evidence of Dr. Nazirul Islam P.W.-2 that some other witnesses namely Saidul Islam (P.W. 4), Jafar Ali (P.W.-8), had also sustained injuries in the above incident. 7. The present case arose out of a land dispute and we find that the informant (P.W.-3) had categorically stated that the land in question was under the possession of the accused persons and the accused persons had grown jute over the said land. However, the incident took place when on the date of occurrence the complainant side started ploughing over the land forcefully. However, the incident took place when on the date of occurrence the complainant side started ploughing over the land forcefully. P.W.-5 has no idea as to who was in the possession of the land P.W.-7 (Surman Ali) on the other hand, categorically stated that the land was in possession of the accused person and they were cultivating over the land and on the date of occurrence, the complainant's side tried to plough over the land. P.W.-7 clarified the matter when he had stated that the disputed land belonged to the accused person and the incident took place due to deceased and other tried to plough over the same plot of land. The statement of P.W.-7 has been supported by P.W.-9 the wife of the deceased when she admitted that the disputed land was earlier ploughed by the accused persons. 8. On going through the impugned judgment, we found that the learned trial Court has also recorded the findings that the land belonged to the accused persons and the deceased's sides' persons were against and the accused persons were within their right to defend and protect their landed property. Trial Court however held that the accused persons had exceeded their right of private defence as conferred under Section 103 IPC. 9. The learned Sr. Advocate Mr. A.S. Choudhury has drawn my attention to the observation of the Apex Court in the case Vajrapu Sambayya Naidu and Ors. v. State of A.P. and Ors. reported in (2004) 10 SCC 152 . Paragraph 20 of the aforesaid judgment reads as follows: 20. The trial court came to the conclusion that the members of the defence party though had a right of private defence of property, they had exceeded that right by causing injuries which ultimately resulted in the death of one of the members of the prosecution party. This was on the assumption that the members of the defence party had only a right of private defence of property, which did not entitle them to cause the death of any persons in the exercise of that right. But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore though initially the Appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp-cutting weapons, that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that become necessary. Unfortunately, the courts below have not viewed the case from this angle. We are of the view that the Appellants were entitled to exercise their right of private defence of property as well as of person in the facts and circumstances of the case. 10. The above observations may not be relevant for the present case as we find that the complainant's side did not resort to any assault and none of the accused persons sustained injury whatsoever in the above case. Thus, right of property did not convert to any right of person and it was out and out a case of right of defence of property. However, we may refer to the observations in paragraphs 21 and 22 in the case of Vajrapu Sambayya Naidu (supra) which reads as under: 21. Even assuming that the right of private defence of persons did not accrue to the Appellants and that, in fact, they exceeded their right of private defence of property, it has to be seen as to which of the accused exceeded that right. It is well settled that in a case where the court comes to the conclusion that the members of the defence party exceeded the right of private defence, the court must identify and punish only those who have exceeded the right. It is well settled that in a case where the court comes to the conclusion that the members of the defence party exceeded the right of private defence, the court must identify and punish only those who have exceeded the right. Section 34/149 IPC will not be applicable in the case of persons exercising their right of private defence See State of Bihar v. Nathu Pandey and Subramani v. State of T.N. For the same reason, the Appellants cannot be held guilty of the offence under Section 148 IPC, because nothing is an offence which is done in the exercise of the right of private defence. 22. In the instant case, the trial court clearly recorded a finding that it was not possible to find as to which accused caused which injury to the deceased. The trial court did not accept the evidence of the prosecution witnesses in this regard, which in any event, was not consistent. The medical evidence on record is to the effect that the death was the result of the cumulative effect of all the injuries, consequently, no single injury caused the death of the deceased. In the exercise of right of private defence of property, the Appellants were certainly entitled to use such force as was necessary, but without causing death. In this state of the evidence on record it is not possible to record a definite finding as to which of the Appellants, if at all, exceeded their right of private defence, and therefore the benefit of doubt must go to all the Appellants. 11. Coming to the fact of the present case, the evidence of the doctor, P.W.-5 is very specific although the deceased sustained number of injuries and we find that injury of scalp and brain was sufficient to cause death. Hence let us examine whether there is any evidence as to who caused the above injury. P.Ws-4 and 5 are the two eye witnesses of the occurrence stated that the injury on the head of the deceased Omar Ali was caused by accused-Appellant Fazar Ali. There is only one injury in the head of the deceased which was caused by accused Appellant Fazar Ali. The evidences of the two eye, witnesses were also very specific to the fact. The Appellant stated above, insisted his right of private defence and property causing the death of the deceased. There is only one injury in the head of the deceased which was caused by accused Appellant Fazar Ali. The evidences of the two eye, witnesses were also very specific to the fact. The Appellant stated above, insisted his right of private defence and property causing the death of the deceased. He is convicted under Section 304Pt-II IPC needs to be affirmed which we do hereby. As held by the Apex Court in Vajrapu Sambayya Naidu's case (supra) the accused persons were convicted under Section 34/149 IPC in case of exceeding right of private defence and hence conviction and sentence entered into four other accused Appellants namely Jahurul Haque, Mazibur Rahman. Matiar Rahman and Nurul Islam are hereby acquitted and set at liberty forthwith. Their appeal also stands allowed. 12. So far the accused Fazar Ali is concerned, we affirmed the order of conviction under Section 304Pt-II IPC and he is acquitted of the charge of Section 326 IPC. Needless to state that the incident took place about 20 years back and the accused Appellant had exceeded his right of private defence in causing death. Keeping in mine the observations of the Apex Court as right of private defence in James Martin v. State of Kerala reported in (2004) 2 SCC 203 , we reduce the sentence to imprisonment to four years and fine of Rs. 1000/- in default further imprisonment for one month. 13. Appeal stands disposed of accordingly. Accused Fazar Ali is directed to surrender forthwith before the learned Sessions Judge, Barpeta. Send down the records of the case to the office of the learned Sessions Judge, Barpeta to take into custody to serve sentences of the accused persons. Appeal dismissed.