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2008 DIGILAW 477 (GAU)

Md. Momin Ali v. State of Assam

2008-07-01

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. J.M. Choudhury learned senior counsel assisted by Mr. A. Roshid learned Counsel appearing for the Appellants as well as Mr. K.C. Mahanta learned Addl. P.P., Assam. 2. The prosecution case as unfolded in the FIR dated 2.2.2000 lodged by Md. Juran AH PW 1 with the Goalpara P.S., in brief, is that on 1.2.2000 while his nephew Md. Anisur Rahman (PW 3) while he was playing in front of his house, the four Appellants quarreled with him and caused swollen injuries in his person by boxing and punching. In connection with the said incident, on 2.2.2000 at about 11 a.m. the Appellants trespassed into the house of his brother Md. Fazlur Rahman (PW 2), father of PW 3 and pulled him out by the scarf of his neck to the courtyard and broke his right hand by hitting it with an iron crowbar and tried to cut him with a dagger. Fazlur Rahman caught the dagger and saved his life but sustained head injury. Meanwhile Aklima Begum, the wife of Fazal Rahman (hereinafter referred to as 'the deceased') and son Anisur Rahman (PW 3) came to the place of occurrence. The Appellants gave dagger blow on Aklima Begum and critically injured her in the head. Anisur sustained injury in his right hand as a result of being hacked with dagger. Thereafter the injured were taken to the hospital for treatment, where Aklima succumbed to the injuries on that very day, i.e. 2.2.2000. The incident was investigated by the police who filed charge-sheet against all the four Appellants under Section 448/325/323/302/34, IPC. 3. In order to prove the incident as alleged in the FIR, the prosecution examined as many as 12 witnesses and out of them PWs 2, 3 and 4 were cited as eye-witnesses, PW 9 Dr. Syedur Rahman was entrusted with to perform the post-mortem examination over the dead body of the deceased, PW 10 Dr. Subodh Nath another doctor who examined the injured Fazlur Rahman (PW 2). PW 12 Bardul Islam was the Investigating Officer who investigated the case. 4. The defence also adduced evidence through its three witness's i.e. DW 1 Md. Mohiruddin, DW 2 Samsul Hoque and DW 3 Forman Ali. 5. Subodh Nath another doctor who examined the injured Fazlur Rahman (PW 2). PW 12 Bardul Islam was the Investigating Officer who investigated the case. 4. The defence also adduced evidence through its three witness's i.e. DW 1 Md. Mohiruddin, DW 2 Samsul Hoque and DW 3 Forman Ali. 5. Learned Sessions Judge having appreciated the entire testimony of the witnesses so examined by the prosecution and the defence and upon hearing the learned Counsel for the parties found all the four Appellants before us guilty of committing murder of the deceased and consequently by his judgment dated 1.7.2006 rendered in Sessions Case No. 13/2000 convicted all the four Appellants under Sections 448/302/325/34, IPC and sentenced them to rigorous imprisonment (RI) for one year under Section 448/325, IPC and RI for life under Section 302, IPC and to pay a fine of Rs.1000/- each, in default, another six months each. 6. Being aggrieved by the aforesaid conviction and sentence, the Appellants have preferred this appeal. We have given our anxious consideration to the extensive arguments so placed on record by the learned Counsel for the parties including the learned Addl. P.P. and also have meticulously scanned the entire testimony of the witnesses, more particularly, the PWs 2, 3 and 4 who were produced by the prosecution as eye-witnesses including the evidence of the doctor PW 9 alongwith the deposition of defence witnesses viz. DWs 1, 2 and 3. It appears from the testimony of those eyewitnesses that they fully corroborated one another and were consistent in deposing that all those four Appellants had assaulted the PW 2 as well as the deceased. All the eye-witnesses deposed that there was an incident on the earlier date i.e. on 1.2.2000 with PW 3, the son of PW 2 and the deceased. In connection with the incident, on 2.2.2000 all the four Appellants came together to the house of PW 2 and dragged him out from his house and hit him on his head which was fully corroborated by medical evidence. At that moment in order to save PW 2, his" wife, the deceased and PW 3, the son intercepted and all the four Appellants also assaulted them grievously with dagger. However, on careful analysis of the testimony of PW 4, it transpires that on the previous day of occurrence there was a quarrel between Anisur and Momin, one of the Appellants. However, on careful analysis of the testimony of PW 4, it transpires that on the previous day of occurrence there was a quarrel between Anisur and Momin, one of the Appellants. At that moment, the accused Hasen caught Anisur and took to his house and assaulted him. On the following day i.e. 2.2.2000 the mother of Anisur i.e. the deceased asked the Appellant No. 4 Plasem Ali while he was going in front of her house, as to why he assaulted her son Anisur Rahman. Thereafter, the Appellant Hasim Ali went back to his house and after some time returned alongwith other accused/Appellants namely, Momin Ali, Nabin Ali and Usman Ali being armed with dagger knife, iron rods etc. and entered into the house of the deceased and dragged out the husband of the deceased and dragged out the husband of the deceased Fazlur Rahman and assaulted both Fazlur and the deceased in the process. 7. With this fact situation in the background, it will be appropriate to look into the injuries inflicted on the deceased as found by medical evidence of PW 9. According to medical evidence of PW 9, following injuries were present on the person of the deceased: Lacerated injury present over mid parietal region. Parietal bone is depressed and there is severe bleeding. Size of the injury 10 cms. x 2 cms. x bone deep. Lacerated injury on scalp size 10 cms. x 2 cms. x 2 cms skull bones both parietal is depressed and fractured. Brain and spinal cord Both cerebrame is crushed and lacerated with huge haematoma. Detailed description of injury. 1. Lacerated injury over the top of head obliquely placed. Size 10 x 2 x 2 cms. 2. Depressed fracture present involving both parietal bones. 3. Cerebrame is crushed and lacerated. The doctor in his opinion stated that the death was due to shock and haemorrhage as a result of injury sustained which was ante mortem in nature. In cross-examination the doctor deposed that the injury to the parietal bone could not be caused by spear. 8. It may also be worth mentioning the medical evidence given by PW 10 Dr. Nath who examined the injured Fazlur Rahman (PW 2) and he found the following injuries on the person of Fazlur Rahman: 1. Fracture saft of humerus (Right) 2. Lacerated wound left parietal region size 5 x 3 x ½ x 2 cms. 8. It may also be worth mentioning the medical evidence given by PW 10 Dr. Nath who examined the injured Fazlur Rahman (PW 2) and he found the following injuries on the person of Fazlur Rahman: 1. Fracture saft of humerus (Right) 2. Lacerated wound left parietal region size 5 x 3 x ½ x 2 cms. 3. Lacerated wound frontal region size 3 x ½ x 2 cms. 4. Swelling left shoulder size 6 x 6 cms. In his opinion, the doctor stated that the nature of the injury was grievous, caused by blunt object and fresh in occurrence. He found four injuries on the person of Fazlur Rahman, but he did not mention in his report as to out of the above injuries, which one was grievous. In cross-examination, he deposed that the X-ray report was not obtained to ascertain whether the bone was fractured in case of Fazlur Rahman. 9. Both the medical evidence of PW 9 and PW 10 would apparently go to indicate that those injuries both on the deceased and Fazlur were not caused by any sharp weapon like spear but by blunt weapon only. 10. Be that as it may, since it is seen that the deceased died due to assault caused by participated of four Appellants, which was conclusively proved with corroboration by above-named three eye-witnesses, we are of the firm view that all the four Appellants were involved in the commission of offence of killing the deceased. 11. However, from the evidence of eye-witnesses it would also reveal that the incident occurred due to some quarrel erupted between the parties in connection with the quarrel of previous day with Anisur Rahman (PW 3), the son of the deceased and Momin Ali, the Appellant No. 1 and having considered such mitigating circumstances and also upon hearing the learned Counsel for the parties, we are of the considered view that offence under Section 302, IPC cannot be attributed to the Appellants and in our opinion, the present case falls within the purview of Section 304 Part I, IPC. Accordingly, we set aside the conviction of Appellants under Section 302, IPC and convicted them under Section 304 Part-I, IPC modifying the sentence of RI for life. We order that the four Appellants be sentenced RI for 10 years. We maintain the conviction and sentence of the Appellants under Section 448/325/34, IPC. Accordingly, we set aside the conviction of Appellants under Section 302, IPC and convicted them under Section 304 Part-I, IPC modifying the sentence of RI for life. We order that the four Appellants be sentenced RI for 10 years. We maintain the conviction and sentence of the Appellants under Section 448/325/34, IPC. The sentence shall run concurrently. 12. In the result this appeal stands partly allowed to the extent of modification of sentence as indicated above. 13. Send down the LCR. Appeal allowed.