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2007 DIGILAW 354 (GAU)

Khaliluddin @ Khalilur Rahman v. State of Assam

2007-05-16

AFTAB H.SAIKIA

body2007
1. Heard Ms. C. Sharma learned Amicus Curiae appointed in place of Mr. S. Baruah the appointed amicus curiae who is found to be absent when the jail appeal has been called upon for final hearing. Also heard Mr. K. A. Mazumdar learned Public Prosecutor, Assam. 2. The conviction of the appellant under section 304 Part II IPC and resultant sentence to undergo rigorous imprisonment (for short, R.I.) for 10 years and to pay a fine of Rs. 1,000 in default further R.I. for 3 months have been challenged in this criminal appeal by the appellant from jail. 3. The impugned conviction and sentence was imposed by the learned Ad hoc Additional Sessions Judge, Hojai at Sankardev Nagar, Nagaon in Sessions Case No. 47(N)02 by his judgment and order dated 24.12.2003. 4. The brief facts as projected by the prosecution is that on 7.9.2000 at about 4 P.M. the appellant along with his son Amiruddin @ Manu had a quarrel with the deceased Rokib Ali, the husband of PW-1 Smt. Khudeja Khatun in the paddy field where late Rokib Ali was working. At that time, in the midst of that quairel the son of the appellant, Amiruddin @ Manu caught hold of the deceased Rokib Ali and at that stage the appellant inflicted a dao injury on the head of the deceased. That incident was witnessed by PW-1 and she raised alarm. When she raised alarm both the miscreants fled away. The injured Rokib Ali was taken to Nakhuti Police Station wherefrom, he was taken to Lanka P.H.C. where the deceased succumbed to his injury. 5. An FIR was lodged alleging the incident as indicated above and accordingly, the investigation ensued. On completion of the investigation, the police submitted charge sheet against the appellant and his Son Amiruddin under sections 302/34, IPC. Since the offence was exclusively triable by the court of Sessions, the case was sent to the court of learned Sessions Judge, Nagaon who in turn transferred the case to the court of learned ad hoc Additional Sessions Judge, Hojai, at Sankardev Nagar, Nagaon. 6. At the time of trial the accused Amiruddin was found to be juvenile and accordingly he was sent to the Juvenile Court at Guwahati to face the trial. The appellant was, therefore, tried alone. 7. During the trial, the prosecution examined as many as seven witnesses when defence adduced one witness. 6. At the time of trial the accused Amiruddin was found to be juvenile and accordingly he was sent to the Juvenile Court at Guwahati to face the trial. The appellant was, therefore, tried alone. 7. During the trial, the prosecution examined as many as seven witnesses when defence adduced one witness. The court also examined one child witness as CW. 8. On proper appreciation of the evidence of all the witnesses including the evidence of the doctor PW-6 as well as the evidence of two investigating officers PW-5 and PW-7 and upon hearing the learned counsel representing the parties, the trial court found the appellant not guilty of murder under sections 302/34, IPC but under section 304, Part-II, IPC and convicted and sentenced him accordingly. 9. Mrs. Sharma, the learned Amicus Curiae in her challenge to impugned conviction and sentence, has contended that P.W. 7 Biseswar Singha, Investigating Officer, in his cross categorically said that PW-1 Smt Khuteka Khatun the wife of the deceased never stated before original investigating officer one Sri D. Kagyung that at the time of occurrence, she went to fetch water and the same is evident from her statement given to the said investigating officer. According to PW-7, PW-2 another witness Abdul Rahim who was the brother-in-law of the deceased, also never told the said investigating officer that those witnesses ever witnessed the occurrence. Even PW-3 daughter of deceased, Jubeda Khatun did not tell, the said investigating officer that at the time of occurrence her deceased father Rokib Ali was attending cow in the field rather she stated that at that time, her father was working in the field. Ms. Sharma has also drawn attention of this court to the fact that PW-7 in his cross, stated that the seized weapon "Nalia Katari" did not reflect any blood stain in it. Even no fingerprint imprinted on the dao was ever collected by the investigating officer and nor was the dao sent for chemical examination. In view of above evidence, according to her, it cannot be said that the prosecution successfully established its case against the appellant beyond reasonable doubt. It is, therefore, a fit case for acquittal giving benefit of doubt to the appellant. 10. The alternative submission of Ms. In view of above evidence, according to her, it cannot be said that the prosecution successfully established its case against the appellant beyond reasonable doubt. It is, therefore, a fit case for acquittal giving benefit of doubt to the appellant. 10. The alternative submission of Ms. Sharma, learned amicus curiae is that if the impugned conviction of the appellant under section 304, Part-II is maintained, then at least the sentence of 10 years rigorous imprisonment may be lessened considering the nature of blow inflicted upon the deceased. 11. It has come on the evidence especially on the medical evidence adduced by PW-6 that the deceased suffered only one fatal blow which was duly corroborated by all the witnesses including the investigating officer and on the basis of such deposition the learned amicus curiae has submitted that the punishment and sentence ought to have been a lesser one than the present sentence of 10 years. It is, therefore, argued by her that though the appellant deserves acquittal on the set of evidence so adduced by the prosecution which were not being corroborated and all along maintained inconsistency, if the appellant conviction is at all upheld under section 304, Part-II, IPC, at best his sentence can be reduced considering the fact that the entire incident happened without pre-meditation in a sudden fight in the spur of passion and without having any intention to kill. 12. To substantiate her submission she has relied on the fact that the appellant acted immediately when he saw that the deceased Rokib Ali was holding his minor son within his grip to assault and with the intent to save him only suddenly he struck the deceased on his head by the blunt edge of the dao. Had there been any intention to kill, according to her, the appellant would have used the sharp edge of the dao which would have resulted instant death. 13. Per contra Mr. Mazumdar has urged that all the witnesses mainly, PW-1, PW-2 and PW-3 being the eye witnesses, their evidence was clear and unambiguous and there cannot be any doubt as regards veracity of their deposition and having found them reliable, the learned judge was absolutely justified in convicting the accused appellant under section 304, Part-II, IPC. 13. Per contra Mr. Mazumdar has urged that all the witnesses mainly, PW-1, PW-2 and PW-3 being the eye witnesses, their evidence was clear and unambiguous and there cannot be any doubt as regards veracity of their deposition and having found them reliable, the learned judge was absolutely justified in convicting the accused appellant under section 304, Part-II, IPC. The submission of the learned Public Prosecutor is that the learned Judge rightly found that there was no ingredient for commission of offence under section 302 IPC though the appellant assaulted the deceased by using "Nalia Katari" and as such there is no illegality or perversity in the findings so arrived at by the learned Judge in convicting the appellant under section 304 Part-II and sentencing him with rigorous imprisonment for the period as indicated above. 14. I have given my anxious consideration to the extensive arguments so canvassed by the learned amicus curiae as well as the learned Public Prosecutor. This court has also meticulously scanned the entire evidence on record particularly the PW-1, PW-2 and PW-3 who categorically in their deposition, deposed that the appellant struck one dao blow on the head of the deceased and injury of such nature was also duly corroborated by the evidence of doctor, PW-6. 15. It will be necessary and pertinent to mention the injury found by the doctor PW-6 which may be reproduced as under: "At the time of examination one incised scalp wound 8" x 2" into skull deep on left temporal region extending from 2" above the left ear to zygomatic prominence was found. On dissection, both the lungs were found cynosed and congested. Both the chambers of the heart were found empty. Depressed fracture of the left temporal bone, free fluid blood was found in the left temporal lobe of the brain. Laceration of the brain tissue was also found. Other organs were found healthy." 16. It is also seen that the doctor after examination of the dead body of the deceased opined that the deceased died due to shock and hemorrhage as a result of head injury sustained and the injury was caused by blunt weapon on the scalp. According to him, the blunt edge of a sharp weapon might have caused the incised wound as found on the head of the dead body. 17. According to him, the blunt edge of a sharp weapon might have caused the incised wound as found on the head of the dead body. 17. It is an admitted case that the entire incident took place due to quarrel between the appellant and the deceased for destroying the paddy field of the appellant by a cow. Besides it has also come on evidence that while the son of the appellant was held by the deceased Rokib Ali with an intent to assault him, the father could not resist himself and he struck the deceased Rokib Ali on his head by the blunt side of the weapon and ultimately, he died. This would clearly go to show that the incident took place in the spur of moment due to the sudden quarrel that took place between the parties. 18. In view of the above, this court has no hesitation to uphold the conviction of the appellant under section 304, Part II, IPC. 19. Now coming to the period of sentence, this court is of the opinion that since the testimony of all the witnesses were categorical as regards the assault on the deceased by blunt edge of weapon due to sudden quarrel and spur of moment, there was no intention at all to kill the deceased by the appellant, the interest of justice will be satisfied if the sentence of the appellant is reduced from 10 years to 5 years. Accordingly, it is ordered that the sentence of appellant is reduced from 10 years R.I. and payment of Rs. 1,000 fine to undergo R.I. for 5 years. 20. In the result, the appeal is allowed to the extent indicated, above. 21. Lower court record be sent down immediately. 22. Before parting with the case record, we would like to put on record our appreciation to Ms. C. Sharma, learned amicus curiae for rendering her valuable assistance and help in arriving at the aforesaid decision and accordingly we order that she is entitled to get her professional fees which is quantified at Rs. 2,500.