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2006 DIGILAW 196 (GAU)

Muzammil Hussain v. State of Assam

2006-02-27

D.BISWAS, H.N.SARMA

body2006
JUDGMENT Biswas, J. 1. The appellants namely, Muzammil Hussain and Mukib Ali were tried by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 20(K)/1997 and convicted and sentenced under Section302/34, IPC for intentionally causing death of Azizur Rahman alias Bhondela on 21-10-1991 at about 11.30 a.m. The sentence imposed against both the appellants on conviction is imprisonment for life and to pay a fine of Rs. 300/-. in default, to further imprisonment for six months each. Being aggrieved, they have preferred this appeal. 2. We have heard Mr. J. M. Choudhury, learned senior counsel assisted by Mr. B. M. Choudhury, learned Counsel for the appellants and also Ms. A. Begum, learned Public Prosecutor, Assam. 3. P.W. 5, Md. Hamid Ali lodged the ejahar before the Officer-in-charge of Kaya Police Station on 21-10-1991 alleging that on the same day at about 11.30 a.m. there was a quarrel at Pub Tola area of No. 2 Dhuhi Village between Md. Nurul Haque on the one side, and Muzammil Hussain and Md. Mukib Ali and two others on the other side over encroachment and putting up of a fence on the Government road. At that time, the accused Muzammil Hussain struck Azizur Rahman (deceased) with a dao causing grievous injuries resulting in his death on the spot. 4. On receipt of the ejahar, the police registered P.S. Case No. 16/1991 under Section 302/34, IPC. The Investigating Officer during the course of investigation held inquest on the dead body and forwarded the same for post-mortem examination, examined the statement of the witnesses and, eventually, on conclusion thereof, submitted charge-sheet against both the accused appellants under Section 302/34, IPC. 5. On being committed, the learned Sessions Judge framed charge against both the accused persons under Section 302/34, IPC and a separate charge against accused-Muzammil Hussain under Section 302, IPC. The charges framed were explained to the accused persons to which they pleaded not guilty. The learned Sessions Judge proceeded with the trial recorded the statement of as many as 13 witnesses produced by the prosecution and, eventually, on conclusion of the trial, convicted and sentenced the accused persons, as aforesaid. 6. Mr. Choudhury, learned Counsel for the appellants submitted that the Appellant No. 1 Muzammil Hussain, has been convicted on the basis of evidence of four witnesses who allegedly had witnessed the occurrence. According to Mr. 6. Mr. Choudhury, learned Counsel for the appellants submitted that the Appellant No. 1 Muzammil Hussain, has been convicted on the basis of evidence of four witnesses who allegedly had witnessed the occurrence. According to Mr. Choudhury, the evidence on record would disclose that there was an altercation and during the course of altercation. Muzammil had assaulted the deceased with a dao. This act on the part of the appellant Muzammil was at a heat of moment on being provoked by the deceased and others. Accordingly Mr. Choudhury submits that conviction of Muzammil may be altered to one under Section 304, IPC. With regard to co-appellant Mukib Ali, it is submitted that he has been convicted solely on the basis of the provisions of Section 34, IPC Mukib Ali did not play any overt role in the matter and there is no evidence to rope him with the alleged crime. 7. Before we address the above contentions, it would be apposite to refer to the medical evidence on record. P.W. 7, Dr. Hemanta Kr. Mahanta who had performed the post-mortem examination deposed that the deceased sustained the following two ante-mortem injuries on his person: Injuries: 1. One incised wound 1.5 x 0.5 cm bone deep palmal side of middle and ring finger of right hand. 2. Incised wound 16 x 2 x 10 cms bone deep on left side, back and back of right side the neck from a point 6 cms left from mid line and front to just below the mandible to a point 10 cms right from midline on back across the neck and lower part of the head placed obliquely lower ends and to the left. The inner part of the occipital bone exposed. The left transverse process and spine of 3rd to 5th cervical vertebra and body of 5th cervical vertebrae are incised. A black of skin and muscle found separated from the lower part of the occiput and found hanging from upper margin of the wound. The muscle of neck vessels to left vertebral artery and the nerves on back of left side of the neck the incised. Clotted blood are adherent to the wound which resist washing a jet of water. All other organs are healthy. 8. This witness tendered in evidence the post-mortem report (Ext. 4). The muscle of neck vessels to left vertebral artery and the nerves on back of left side of the neck the incised. Clotted blood are adherent to the wound which resist washing a jet of water. All other organs are healthy. 8. This witness tendered in evidence the post-mortem report (Ext. 4). In his opinion, the death was caused due to shock and haemorrhage resulting from the injuries caused by sharp cutting weapon. This witness further stated that the injuries were ante-mortem and homicidal in nature. Practically, this witness has not been cross-examined by the defence. The evidence of this witness read with the inquest report (Ext. 2) establish the death of Azizur Rahman. 9. We may now address the argument advanced by Mr. Choudhury pleading acquittal of Muzammil Hussain. P.W. 1. Nurul Haque in his evidence stated that he knows appellant Muzammil Hussain and Azizur Rahman, the deceased. There was a dispute over encroachment of the village road between the appellants and other residents of the village. This witness requested the appellant-Muzammil Hussain not to obstruct the road by putting any fencing. His request was not heeded to and they stated to altercate and also threatened to kill him. Thereafter, Azizur Rahman, the deceased, came to the place of occurrence and requested the accused not to obstruct the road and further told that if necessary they would go to Rangia for demarcation of the boundary of the road. The altercation continued and in the midst thereof, appellant-Muzammil Hussain assaulted Azizur Rahman with a dao. Azizur Rahman tried to resist the assault and, in the process, he sustained two injuries on his fingers. When Azizur Rahman was bandaging the injuries, the other accused-Mukib Ali ordered Muzammil Hussain to finish Azizur Rahman and Muzammil Hussain accordingly assaulted Azizur Rahman on the neck with a dao killing him on the spot. 10. The evidence of P.W. 1, Md. Nurul Hussain is supported by P.W. 2. Md. Isha Ali who also went to the place of occurrence and saw Muzammil assaulting Azizur Rahman with a dao on his neck. Similarly, P.W. 3 Md. Fazal Haque, also deposed that in course of altercation Muzammil Hussain assaulted Nurul Hussain with a dao but the same was resisted by the deceased-Azizur Rahman who sustained injuries on his fingers. Md. Isha Ali who also went to the place of occurrence and saw Muzammil assaulting Azizur Rahman with a dao on his neck. Similarly, P.W. 3 Md. Fazal Haque, also deposed that in course of altercation Muzammil Hussain assaulted Nurul Hussain with a dao but the same was resisted by the deceased-Azizur Rahman who sustained injuries on his fingers. While Azizur Rahman was bandaging his injuries, Muzammil Hussain being instigated by Mukib Ali, dealt a dao blow on the neck causing his instantaneous death. In the same vain P.W. 4 Md. Harej Ali, who initially tried to pacify the parties and settle the matter also deposed that Muzammil Hussain assaulted Azizur Rahman who sustained injuries on his fingers, and when Azizur Rahman was bandaging his wound on his finger, on being instigated by Mukib Ali and others, the appellant-Muzammil Hussain dealt with the second blow on the neck of Azizur Rahman. 11. The evidence of P.Ws. 1, 2, 3 and 4 about the role played by Muzammil Hussain are clear and consistent and, therefore, worthy of credence. The defence could not dislodge the credibility of the witnesses during the course of cross-examination insofar the role played by Muzammil Hussain is concerned. There is no iota of embellishment in the statement of these witnesses with regard to the complicity of the appellant-Muzammil Hussain. 12. Mr. Choudhury pleaded that it is not a case fit for conviction of Muzammil Hussain under Section302, IPC but under Section 304, IPC. It is because Muzammil Hussain had launched the attack on the deceased-Azizur Rahman during the course of altercation and may be he was provoked by the deceased or other members belonging to his party. We have carefully scanned the evidence on record. We find that all the persons present were engaged in verbal duel and there was nothing physical in it. The fist blow was dealt by the accused Muzammil Hussain causing injuries on the fingers of the deceased. Had he rested there, perhaps it would have been a case of no intention to cause death. But in the instant case, Muzammil Hussain dealt with the second blow on the neck of the deceased. While doing so, he was fully aware of the consequence of a dao blow on the neck of a person. The intention to kill developed in him at the time when he dealt with the second blow. But in the instant case, Muzammil Hussain dealt with the second blow on the neck of the deceased. While doing so, he was fully aware of the consequence of a dao blow on the neck of a person. The intention to kill developed in him at the time when he dealt with the second blow. The evidence on record do not show any mitigating circumstance for which the conviction of Muzammil Hussain is liable to be converted to one under Section 304, IPC. 13. Insofar as the appellant Mukib Ali is concerned, it is already stated hereinbefore that he has already been roped under Section 31. IPC. There is no evidence on record to show that Mukib Ali had played any role in assaulting the deceased. He was one of the members of the party engaged in altercation over, encroachment of Government road. Therefore, it cannot be said that they were sharing a common intention to kill Azizur Rahman. The only evidence against him is that he had instigated Muzammil Hussain to give the second blow. P.W. 1 Md. Nurul Haque stated that accused Mukib Ali ordered Muzammil Hussain to finish Azizur Rahman and, accordingly, Muzammil Hussain assaulted Azizur Rahman with a dao. We have examined the evidence of other witnesses. Except P.Ws. 3 and 4, none else said anything about instigation by appellant No. 2 Mukib Ali. But, P.Ws. 3 and 4 made no statement about instigation by Mukib Ali before the I.O. during the course of investigation. For the first time they stated before the Court that Mukib Ali had told Muzammil Hussain to finish Azizur Rahman. The only evidence is that of P.W. 1 who had stated that Mukib Ali ordered Muzammil Hussain to finish Azizur Rahman and, accordingly, Muzammil Hussain killed Azizur Rahman. This is the lone evidence available on record against Mukib all. This, in our opinion, does to make out a case of common intention between Mukib Ali and Muzammil Hussain to kill Azizur Rahman. A stray call given by someone present in the site in a heat of passion during altercation cannot be attributed with the element of "intention to kill". There is no instance of any obvert act on his part in assaulting the deceased. Nor there is any evidence to show that he was carrying any weapon with him. A stray call given by someone present in the site in a heat of passion during altercation cannot be attributed with the element of "intention to kill". There is no instance of any obvert act on his part in assaulting the deceased. Nor there is any evidence to show that he was carrying any weapon with him. Considering all these features, we are of the view that conviction of appellant No. 2, Mukib Ali, under Section 302, IPC read with Section 34, IPC cannot be sustained. 14. In the result, we allow the appeal partly, affirm the sentence imposed on appellant No. 1 Muzammil Hussain and acquit appellant No. 2 Md. Mukib Ali from the charges framed with. 15. Office to issue release order of the appellant No. 2 Mukib Ali immediately.