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Gauhati High Court · body

2008 DIGILAW 13 (GAU)

Sahar Ali v. State of Assam

2008-01-04

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. P. Sarma, learned Counsel for the Appellant and Mr. B. Gogoi, learned Additional Public Prosecutor, for the Respondent State. 2. This appeal has been filed against the judgment and order dated 6.9.2001 passed by the learned Ad hoc Additional Sessions Judge, Darrang in Sessions Case No. 24 (DMFT)/2001 'convicting and sentencing the Appellant for RI for 7 (seven) years with a fine of Rs. 3,000/- in default further RI for 1 (one) year under Section 304 Part II, IPC. 3. Briefly stated, the prosecution case runs like this: the accused Appellant after the death of his first wife married second wife Firuza Begum, CW-1 to look after his children. He had two sons namely Maidul Islam (PW 1) and Sayedur Rahman. Two sons always used to quarrel with their step mother. On 14.11.1993, one of his sons, Sayedur Rahman quarreled with his step mother abusing her in foul language and she was crying. When the accused Appellant enquired Sayedur, he rushed to him with a dao in his hand to cut him. The accused Appellant in order to save himself hit with a lathi at the dao. The dao flung away but the strike fell on the head of Sayedur causing serious injury: He was removed to Mangaldoi Civil Hospital but the said Hospital referred him to Guwahati Medical College Hospital, where he died on 15.11.1993 at 5.45 p.m. The post-mortem examination was done on 16.11.1993 at 1.45 p.m. and the FIR was lodged on 16.11.1993 at 6.30 p.m. The police registered a case being Mangaldoi P.S. Case No. 170/1993 under Section 302, IPC. The Investigating Officer visited the place of occurrence and took statement of some witnesses under Section 161, Code of Criminal Procedure but he could not recover the dao used by the deceased son, Sayedur and the lathi used by the accused himself. A first class Judicial Magistrate with the Order of the CJM, recorded the statement of the same witnesses under Section 164, Code of Criminal Procedure After completion of investigation charge sheet was laid and the case was committed to the Court of Sessions, Mangaldoi for trial. A charge under Section 302, IPC was framed against the accused. On explaining the charges the accused/Appellant denied the charges and took the plea of right of private defence. 4. A charge under Section 302, IPC was framed against the accused. On explaining the charges the accused/Appellant denied the charges and took the plea of right of private defence. 4. During trial, the prosecution examined in all 11 witnesses including the Doctor who held the autopsy, the Judicial Magistrate and the Investigating Officer. The defence examined none. The second wife of the accused, Firuza Begum was examined as CW-1. 5. In this case the factum of killing of son Sayedur Rahman has been admitted by the accused but he denied that he killed him intentionally. The killing took place in the course of action taken by him for private defence. 6. PW 1, Maidul Islam, son of the Petitioner is the only eye-witness of the occurrence. According to him all the family members namely the accused the deceased, the step mother, male servant and himself were engaged in potato plantation on the date of occurrence. There was an altercation between Sayedur Rahman (deceased) and step mother, Firuza Begum, he and his accused father were at a distance of 100 feet from them. When the step mother, Firuza Begum started crying, PW 1 came near her and she entered into the house. His accused father who was busy in breaking the clods in the bed of potato plantation with a small lathi at a little distance asked Sayedur Rahman why he was quarreling with his step mother. Sayedur Rahman then attempted to cut his father with a dao and while the accused father hit the dao with his lathi, the dao flung away and the strike fell on the head of Sayedur Rahman and he fell down. According to PW 1 his father gave only one strike to throw away the dao. When Sayedur fell down his father, male servant, Maszid Ali and himself immediately rushed the injured Sayedur to Mangaldoi Civil Hospital and his condition was serious. He was referred to Guwahati Medical College Hospital for treatment but he succumbed to his injuries in the said Hospital. 7. PW 2, Sri Asraf Ali is a neighbour who was also working in his own potato plantation at a little distance from the field of PW 1. He deposed that he did not see the occurrence and did not know who killed Sayedur or how Sayedur was killed. 7. PW 2, Sri Asraf Ali is a neighbour who was also working in his own potato plantation at a little distance from the field of PW 1. He deposed that he did not see the occurrence and did not know who killed Sayedur or how Sayedur was killed. He also did not know where from Sahar Ali's servant boy, Maszid Ali, came to the place of occurrence. He saw said Maszid Ali taking Sayedur by holding his hands to the main house. 8. PW 4, Sri Afaz Ali, is not an eye-witness. He could see Sayedur was lying and near him he found Maidul Islam, Sahar Ali and Firuza Begum. Sayedur Rahman could speak till then and he was made to stand, taken to the main house on foot and thereafter he was taken in a hand cart to Mangaldoi. In cross-examination, he deposed that he did not see anybody chasing someone. He did not see who had assaulted whom. 9. PW 5, Intaz Ali was working as daily labourer on the day of occurrence in the potato field of Sahar Ali at little distance. He heard shout and found Sayedur was lying. Accused Sahar Ali, his wife Firuza Begum, son Maidul and servant Maszid Ali were present nearby the injured Sayedur. He deposed that Sayedur was in a state capable to speak and he took him some half furlong distance on walk and thereafter sent him in a hand cart to Mangaldoi Civil Hospital. PW 6, Ajmal Hussain is a witness to the inquest on the dead body of deceased Sayedur. He has no knowledge about the occurrence. He simply saw Sayedur's step mother and Maidul pouring water on Sayedur and the accused kept holding him. He also deposed that he took Sayedur by holding his hands to main house and took him to Mangaldoi Civil Hospital. 10. PW 3, Abdul Karim, who lodged the FIR was a nephew of the accused, Sahar Ali. He stated that he was in the house of his father-in-law at Kalaigaon on the date of occurrence and so he knows nothing about the incident. In cross-examination he stated that the Ejaliar, Exhibit-2, was lodged by him only after the death of Sayedur based on hearsay. 11. The factum of killing of Sayedur Ruliman has been proved. He stated that he was in the house of his father-in-law at Kalaigaon on the date of occurrence and so he knows nothing about the incident. In cross-examination he stated that the Ejaliar, Exhibit-2, was lodged by him only after the death of Sayedur based on hearsay. 11. The factum of killing of Sayedur Ruliman has been proved. However the question as to how and under what circumstances he was killed is yet to be answered. The accused in his statement under Section 313, Code of Criminal Procedure stated that he did not kill his son Sayedur intentionally and explained how he had to strike lathi in private defence that caused death of Sayedur. The relevant question and answer are quoted below: Q. In his evidence PW the Doctor adduced that as per medical report Sayedur had died because of injury caused with a lathi. What do you say? Ans. I did not kill him intentionally. Q. Have you got anything to say? Ans. Yes, I have, after the death of my first wife, I got married again thinking my children would suffer otherwise. But the two sons always quarrel with their step-mother. On the day of occurrence also, he quarreled with stepmother and used foul language at her. Seeing she was crying when asked the younger son rushed to me to cut. When I flung off the dao by striking with a lathi, the stroke fell on his head and I gave him all sorts of treatment but I could not save him. I did not kill him. 12. The other son of the accused, who deposed as PW 1 corroborated his accused father's statement. Similarly the wife of the accused/Appellant, Firuza Begum, CW-1, also corroborated the said statement. Both PW 1 and CW-1 are eye-witnesses to the occurrence as they had been working in the potato field at the time of occurrence. The other witnesses examined by the prosecution have not seen the occurrence, although some of them were working in the nearby field. They simply deposed the condition of the deceased after the incident and how he was taken in injured condition to hospital. 13. There was another eye-witness namely Masjid Ali, servant boy of the accused, who was also working in the potato plantation along with the family members of the accused and was present at the place of occurrence. They simply deposed the condition of the deceased after the incident and how he was taken in injured condition to hospital. 13. There was another eye-witness namely Masjid Ali, servant boy of the accused, who was also working in the potato plantation along with the family members of the accused and was present at the place of occurrence. The fact of presence of said servant, Masjid Ali at the place of occurrence has been testified by PWs 1,2 and 5 and same was demolished in the cross-examination of these witnesses. 14. From the impugned judgment and order it is found that the learned trial Court gave high evidentiary value on the statement made by some witnesses and recorded by the Judicial Magistrate, PW 8 under Section 164, Code of Criminal Procedure and relying mostly on them convicted the accused. We find on record that this statement under Section 164, Code of Criminal Procedure have not been used for the purpose of contradiction and corroboration of the statement of the said witnesses. Had it been intended to do so, the said statement should have been put to the witness concerned and they should have been asked if they made the said statement. Such being not done, it is improper on the part of the learned trial Court to put any reliance on or take help from such evidence for conviction of the accused. The learned trial Court cannot, in our opinion, use such statement under Section 164, Code of Criminal Procedure as a piece of substantive evidence because of the settled law that the statement under Section 164, Code of Criminal Procedure is not an evidence. 15. We are completely opposed to the above approach of the learned trial Court in convicting the accused putting reliance on the statements made under Section 164, Code of Criminal Procedure. Then what possible approach, could we as appellate Court, can adopt in this case? We propose to test the truthfulness of the pleas of right of private defence by the accused. First of all let us look at the injury report as recorded in the post-mortem report, Ex-hibit-7. There are two wounds: 1. Abrasion 2.5 cm. x 0.5 cm. in the posterior aspect of the right elbow joint. 2. Lacerated wound with stitches 4.5 cm. x 1.5 cm. in the right side of the sculpt 7.5 cm. above the right ear 8 cm. There are two wounds: 1. Abrasion 2.5 cm. x 0.5 cm. in the posterior aspect of the right elbow joint. 2. Lacerated wound with stitches 4.5 cm. x 1.5 cm. in the right side of the sculpt 7.5 cm. above the right ear 8 cm. behind the right supra orbital ridge. Cause of death is coma resulting from the head injuries. The injuries are ante-mortem caused by blunt force impact. Homicidal in nature. 16. These two injuries tell the real tale. The accused hit the deceased twice by the stick. First he hit for private defence at the dao to throw away the dao itself that caused abrasion mentioned as wound No. 1 above. And thereafter, when the dao went off the hand of the deceased, hit the lathi for the second time on the right sculpt, the fatal one which caused the death of the deceased. The second lathi hit was not for private defence but for taking the life of the deceased. 17. PW 11, Hem Ch. Boro, the Investigating Officer of the case deposed in cross-examination that "the weapon with which the killing had been perpetuated have been searched but could not be recovered". The eye-witness, PW 1, Maidul Islam and CW-1, Firuza Begum, have not stated as to what happened to the incriminating dao and the lathi. None of the PW's has stated anything about the said dao and the lathi. No question was put to the witnesses about the said dao and the said lathi. It is not a case that Sayedur, the deceased, took away or concealed the dao anywhere. It was not possible to do so by him because he fell down and was taken to Hospital in serious condition. How is it that none of the persons gathered at the place after the occurrence felt it necessary to take into possession the said dao for handing it over to the police as a piece of material evidence. It was the primary duty of the accused himself and his son Maidul and his wife Firuza to preserve the dao and hand it over to the police whenever they come for investigation in connection with the case. And it is more so when they alleged that the deceased was the aggressor with the said dao in his hand. It was the primary duty of the accused himself and his son Maidul and his wife Firuza to preserve the dao and hand it over to the police whenever they come for investigation in connection with the case. And it is more so when they alleged that the deceased was the aggressor with the said dao in his hand. The Investigating Agency is not to blame in this case for not being able to trace out the said dao in view of the fact that the FIR was lodged after two days of the occurrence, more precisely to say, after one day of the death of the injured son in Hospital. Therefore, recovery of the dao would have been possible by the police with the co-operation of the defence only but they have shown no interest in it. 18. In their depositions, PW 4 and PW 5 have stated that injured Sayedur was in a state to walk some distance and speak till he was removed to Hospital. Had the FIR been lodged immediately after Sayedur was removed to Hospital, the police would have been able to start the enquiry/investigation and could have rushed to the place of occurrence, seized the incriminating dao and lathi and also took other necessary steps for recording dying declaration of the deceased. The accused, even his son, PW 1, were not keen to report the incident to the local police. PW 1, Maidul in his evidence said that he did not go to Guwahati Medical College Hospital and PW 6, Ajmal, went there from their side i.e. the family of the accused. If that is so what prevented PW 1, Maidul or the accused from informing the police or other PWs who were present after the incident at the place of occurrence. The accused kept himself satisfied by simply bearing the entire medical expenses for treatment of the deceased as deposed by PW 1 and CW-1. If that is so what prevented PW 1, Maidul or the accused from informing the police or other PWs who were present after the incident at the place of occurrence. The accused kept himself satisfied by simply bearing the entire medical expenses for treatment of the deceased as deposed by PW 1 and CW-1. The conduct of the accused in not visiting his son Sayedur, who was lying in serious condition in the Guwahati Medical College Hospital, not reporting the matter to the police at the earliest by himself or through other son, PW 1 or other witnesses, gathered after the incident and not showing the crime dao allegedly used by the deceased to cut him and of course, the lathi by which he effectively resorted to private defence, to the Investigating Officer and not making even a whisper about the same, is not only unnatural but also conspicuous suggesting of making an after thought story of private defence by the accused in collaboration with his son PW 1 and wife CW-1. 19. In this case, FIR was lodged after the death of the deceased after 3 (three) days of the occurrence, by a relative of the accused, who was not present on the date of occurrence, after hearing about the incident from others without giving, quite naturally, the details of the incident. There was no venture from the accused or the concerned people gathered just after the incident to file the Ejahar. The gap, rather delay of 3 days in lodging the FIR and that too without giving the minimum information/details, left enough room for embellishment and introduction of coloured version. There is nothing to cast any doubt on the bonafide of the FIR filed by PW 3 but when he said in cross-examination that he lodged the Ejahar "based on hearsay" smacks elusiveness of the FIR at the instance of the accused who had no other alternative except to lodge the FIR soon after the death of his son. Had the son not succumbed to injuries, the incident would have been suppressed/hushed up. There having no independent eyewitnesses and no dying declaration we are to fold back on the question whether the attending circumstances atleast probabalised the accused to invoke the right of private defence. We have already discussed the same on the basis of the injury report reflected in the postmortem report. There having no independent eyewitnesses and no dying declaration we are to fold back on the question whether the attending circumstances atleast probabalised the accused to invoke the right of private defence. We have already discussed the same on the basis of the injury report reflected in the postmortem report. We are of the view that the accused had a right of private defence when the deceased son rushed to him with a dao and as soon as the said dao was thrown away after the first strike by his lathi, the accused had lost the right of private defence and the second strike which felt on the head of the deceased was not for right of self defence. 20. There is another probability that can be inferred from the facts and circumstances of the case. As discussed earlier that the incriminating dao and the lathi were not recovered by the police, goes against the defence, which is probable that the deceased son did not at all make any attempt on the life of the accused or to cause any harm to him and it was the accused himself who actually on a little or no provocation from Sayedur, dealt the lathi blow on him and the plea of private defence has been taken by the accused. This aspect has not been considered by the learned trial Court. Even assuming that the deceased rushed to the accused with a dao, the situation was not such that the accused should have dealt the second lathi blow to his son which caused death to him and there was in fact no occasion to resort to second lathi blow on his son. This being the position we are satisfied that the benefit of right of private defence cannot be given to the accused/Appellant and the conviction and sentence awarded by the learned trial Court cannot be interfered. 21. Having considered all aspects of the matter, we are of the view that the accused exceeded the right of private defence in which case the offences would be one punishable under Section 304 Part I, IPC. This being not the position in this case we hold that the learned trial Court rightly convicted and sentenced the accused/Appellant under Section 304 Part II, IPC and, accordingly, we uphold and affirm aforesaid conviction and sentence. 22. This appeal stands dismissed. 23. Send down the record.