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2007 DIGILAW 433 (GAU)

Tafazzul Ahmed @ Tafazzul Ali v. State of Assam

2007-06-21

HRISHIKESH ROY

body2007
JUDGMENT Hrishikesh Roy, J. 1. This appeal is preferred against the judgment and order dated 5.2.2004 rendered in Sessions Case No. 76/2004 by the learned Sessions Judge, Karimganj, whereby the accused appellants have been convicted for the commission of offence under Section 447, 323 and 304, IPC, read with Section148 and 149, IPC. On the basis of the aforesaid conviction, the accused appellants have been sentenced to suffer RI for seven years with a fine of Rs. 1000.00 and also to suffer SI for six months by each of them for the offences committed by them under Sections 304, IPC, read with Sections148 and 149, PC. 2. The case set up by the prosecution is that on 30.1.97 at about 2 PM, the accused persons five of whom were named in the FIR formed an unlawful assembly and trespassed into the house of the complainant and assaulted Lutfa Begum by dragging her out from her house. Salma Begum and Mazu Begum came to rescue Lutfa Begum, but the accused appellants also assaulted them. 3. An FIR was logged on the same date by the injured Lutfa Begum and Salma wherein the name of appellant Nos. 1 to 5 were mentioned as assailants who had assaulted the informants Lutfa and Salma. 4. Eventually after fifteen days, on 15.2.97, Lutfa died and accordingly, charge under Section 304, IPC, was also framed against the accused persons. 5. Prosecution examined as many as nine witnesses, defence examined none. It was a case of absolute denial by the defence. PW-1, Dr. R.N. Das, who conducted the post mortem examination on the dead body of Lutfa deposed in his evidence that no external injury was seen. The body was pale and anemic. According to this witness as the actual cause of death could not be ascertained, certain viscera were kept preserved for forensic analysis. In cross-examination, this witness stated that he was informed by accompanying person that the deceased was treated at Nilambazar PHC. PW-1 further stated that pale health can be caused by malaria, anemia, etc. PW-2, Faizur Rahman, is the uncle of the deceased Lutfa. He claimed to be an eyewitness to the incident. He deposed in his evidence that there was an altercation between the son of his elder brother, Ashuk, and the accused appellants over fishing in the nearby pond of his homestead land. PW-2, Faizur Rahman, is the uncle of the deceased Lutfa. He claimed to be an eyewitness to the incident. He deposed in his evidence that there was an altercation between the son of his elder brother, Ashuk, and the accused appellants over fishing in the nearby pond of his homestead land. Thereafter the accused appellants armed with bamboo 'chota' came pursuing to Ashuk's house. At that point of time, Lutfa, Hamida and Salma came out and offered resistance to the accused appellants in his courtyard. The accused persons had assaulted Lutfa, Hamida and Salma with "Chota" because of which the three girls sustained injuries. In cross-examination this witness could not say in which part of her body the deceased Lutfa had sustained injuries nor could he state about the injuries sustained by other injured persons. He further stated that Lutfa had fever at that time. He specifically stated that the accused appellant Aziz was not seen at the place of occurrence. PW-3, Hamida Begum, is cousin of the deceased Lutfa. She is an eye witness to the incident and also stated to have been assaulted by the accused persons. In her cross-examination Hamida stated that Lutfa had bled from her back. Further this witness stated, in cross-examination, that she will not be able to identify any of the accused appellants even if they are produced before her. PW-4, Abdul Latif, is an uncle of the deceased and an eyewitness to the incident. He stated in his evidence that the appellants who were armed with lathis and daos hit the deceased Lutfa. He deposed that the accused appellants punched and hit Lutfa with elbows and lathis. In cross-examination, he has stated that after the incident the deceased suffered from cough and fever and chest pain. Since her physical condition was very bad, she was taken to Karimganj for treatment. PW-5, Zamal Ahmed, deposed in his evidence that the accused appellant Nos. 4, 5 and 6 had hit the deceased Lutfa with lathis and when Hamida and other girl came out to help Lutfa, they beat the other two girls as well. In cross-examination this witness stated his inability to say as to who had beaten the deceased and in what manner. PW-6, Jonab Ali, is a neighbour of the deceased Lutfa. He is the only independent witness of the incident. In cross-examination this witness stated his inability to say as to who had beaten the deceased and in what manner. PW-6, Jonab Ali, is a neighbour of the deceased Lutfa. He is the only independent witness of the incident. He specifically stated that the accused appellant No. 1 hit Lutfa with a piece of bamboo and since many people gathered there, he could not see whether any one of them took part in the assault. In cross-examination, this witness stated that he was present at the place of occurrence torn the very beginning till the end and claimed that the incident had lasted for about an hour. This witness specifically stated that the accused appellant No. 6 Abdul Aziz was not present. PW-7, Asuk Ahmed, is also an uncle of the deceased. He deposed that the accused persons had beaten Lutfa. In cross-examination he stated that the accused appellant No. 6, abdul Aziz, is a respected person in the village. This witness had specifically stated that the deceased had been sick prior to the incident. PW-8, Sumsul Islam, deposed that the accused Tafazzul and Abdul Aziz, had beaten the deceased Lutfa and other injured persons. Sumsunnessa and Hamida Begum. Injured were taken to Baroigram and Lutfa was taken home after treatment. In cross-examination, this witness stated that Lutfa was treated at home for fifteen days. Apart from providing treatment by Dr. Niloze, she was also treated by Homeopathy doctor. PW-9, is the Investigating Officer of the case who made inquest on the dead body and produced the inquest report as well as the forensic evidence in the trial. According to him, viscera sent for forensic examination showed negative test of poisoning. He further stated that PW-3, Hamida Begum, told him that they had been severely beaten by lathi like weapons but he found no injury on the body of the deceased. 6. Mr. HRA Choudhury, learned senior Advocate appearing for the accused appellants submits that in the instant case, in the absence of any injury on the person of the deceased, as revealed from the inquest report and the post mortem report, it cannot be said that any injury was inflicted on the body of the deceased. 6. Mr. HRA Choudhury, learned senior Advocate appearing for the accused appellants submits that in the instant case, in the absence of any injury on the person of the deceased, as revealed from the inquest report and the post mortem report, it cannot be said that any injury was inflicted on the body of the deceased. The learned senior counsel further contends that if at all it is to be assumed that injuries had been inflicted on the body of the deceased, they cannot be of such nature as would cause death and accordingly, he submitted that the present case cannot be described as culpable homicide. According to him, ingredients of Section 304, IPC, are not attracted to the facts of the present case. The learned senior counsel argued that there are material contradiction in the evidence regarding the involvement of the accused appellants and in face of such contradiction, conviction against the accused appellants can not be sustained in law. The learned senior counsel specifically referred to the evidence of PW-2 who had stated that the accused appellant No.6 Abdul Aziz was not seen at the place of occurrence, whereas P Ws 4 and 8 stated in their evidence that the accused appellant No 6 was present. Such contradiction in the evidence regarding the accused appellant No. 6 Abdul Aziz being present at the place of occurrence creates doubts about his presence as the name of this person was not named in the FIR. Mr. Choudhury further submits that the only independent witness, PW-6 (neighbour), had stated in his deposition that Tafazzul had hit the deceased and has not named any one else as the assailant and accordingly, it is submitted that the involvement of others in the incident should be disbelieved. According to him, when two views are possible, the view favourable to the accused should be taken and since the evidence also indicates that the deceased was suffering from cough and fever and chest pain and receiving treatment from Homeopathy doctor, her death cannot at all be attributed to the injuries sustained by her in the incident on 30.1.97 and her death might have been caused due to some internal cause. In support of his contention Mr. In support of his contention Mr. Choudhury referred to the medical evidence of PW-1 to show that no external injury was found on the body of the deceased and the doctor could not give any opinion regarding the cause of death. 7. Mr. P.C. Gayan, learned PP, Assam, by discussing the evidence on record has submitted that although there could be doubt as to whether this is a case for convicting the accused appellants for commission of offence under Section 304, IPC, but there is no doubt about the involvement of the accused appellants with an offence punishable under Section 323, IPC. The learned PP submits that the deceased was assaulted by bamboo 'chota' 15 days prior to her death was witnessed although specific role of each of the accused appellants could not be ascertained. But the facts remain that the accused appellants were members of an unlawful assembly and, therefore, each of them would be liable for any act done by any one member of that unlawful assembly and would, therefore, be roped in and punishable under Section 149, IPC. The learned Public Prosecutor submits that the evidence of PW-2 indicates that all the assailants were named in the FIR. PW6 also stated that Tafazzul had hit the deceased Lutfa with a bamboo 'chota'. PW-8 also stated in his evidence that Abdul Aziz had assaulted Lutfa. On the basis of these evidence, it is submitted that this is a definite case for conviction under Section 323, if not under Section 304, IPC. 8. I have considered the evidence on record. It appears that the deceased herself went to the Police Station for lodging the FIR and after receiving primary treatment for her injuries she went her home. Obviously, if the assault on the deceased was of such grievous nature, she would not have in a position either to visit the Police Station or she would not have allowed by the doctor to go to her home after receiving preliminary treatment. It is also seen from the evidence on records that the deceased was suffering from cough and fever and chest pain as has been deposed by Abdul Latif who is her paternal uncle. Therefore, it is quite possible that her death after 15 days from the date of the incident may not be a direct result of the assault on her by the accused appellants on 30.1.97. Therefore, it is quite possible that her death after 15 days from the date of the incident may not be a direct result of the assault on her by the accused appellants on 30.1.97. Therefore, I am of the view that the conviction of the accused appellants for the offence under Section 304, IPC, is clearly unwarranted in the facts of the present case. Accordingly, the conviction under Section 304, IPC, is set aside and quashed. 9. Coming now to the contention raised on behalf of the prosecution for sustaining the conviction under Section 323, IPC, I find from the evidence on record that although specific role of individual accused persons have not been attributed, in a case of this nature, the requirement of specific role of each of the individual accused person may not be warranted to rope them in as members of an unlawful assembly, if the assault is otherwise proved. The accused appellant Nos 1 to 5 were named in the FIR, which was lodged soon after the incident by the deceased herself and accordingly, these accused persons forming unlawful assembly to take part in the assault is clearly established. 10. Of all the five accused appellants, specific role has been attributed to Tafazzul by the independent witness PW-6, Jonab Ali and accordingly, the accused appellant Nos 1 to 5 are also equally liable for the act done by Tafazzul in the incident. 11. The question as to whether the blow given by Tafazzul by a bamboo 'chota' is sufficient to take a view that the intention was to cause anything more than 'hurt' as defined under Section 321, IPC. Although no injury was found on the body of the deceased in the inquest report and the post mortem report, I am of the view that the assault made by Tafazzul on 30.1.97 on the body of the deceased would bring the case to one, punishable under Section 323, IPC. Accordingly, I hold that the conviction of the accused appellant Nos 1 to 5 under Section 323, IPC, would sustain. 12. As regards conviction of the accused appellant No. 6, Abdul Aziz is concerned, he was not named in the FIR. PW-2 has clearly stated that Abdul Aziz was not seen at the place of occurrence whereas PW-4 has stated that Abdul Aziz had a dao in his hand. 12. As regards conviction of the accused appellant No. 6, Abdul Aziz is concerned, he was not named in the FIR. PW-2 has clearly stated that Abdul Aziz was not seen at the place of occurrence whereas PW-4 has stated that Abdul Aziz had a dao in his hand. PW-7 has good words for speak about Abdul Aziz who was described by him as a respectable person in the locality. 13. In view of such material contradiction in the evidence of witnesses regarding presence of the accused appellant No. 6 at the place of occurrence, I am of the view that the conviction of accused appellant No. 6, Abdul Aziz, with the assault in the nature of hurt to deceased Lutfa cannot be sustained. 14. This view is also taken as PW-4 has deposed that Abdul Aziz had a dao in his hand. If Abdul Aziz had participated in the assault with a dao, there would definitely be cut injuries on the body of the deceased. But no such injuries are found. Therefore, I am of the view that conviction of appellant No. 6 is not sustainable and the same is set aside and quashed. 15 Coming now to the sentences on the accused appellant Nos 1 to 5, it is seen that the maximum punishment prescribed for commission of offence under Section 323, IPC, is 1 year and/or fine of Rs. 1000.00. It is submitted that all the accused appellants have been in jail since their conviction on 5.2.07 and by this time they have been incarnated for than 51/2 months in jail. In view of conviction of accused appellants Nos 1 to 5 for the offence under Section 323, IPC, I hereby order that the conviction and sentences of the accused appellant Nos. 1 to 5 be for the duration they have remained in 16. With the aforesaid observation and directions, this criminal appeal stands allowed and all the 6 accused be released forthwith. Appeal allowed.