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2008 DIGILAW 499 (GAU)

Md. Ayub Nabi v. State of Assam

2008-07-15

AFTAB H.SAIKIA, UTPALENDU BIKAS SAHA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. A. Dutta, learned amicus curiae appearing on behalf of the Appellant as well as Mr. K.C. Mahanta, learned Public Prosecutor, Assam. 2. The conviction of the Appellant under Section 302, IPC and the resultant sentence to undergo rigorous imprisonment ('R.I.') for life and also to pay a fine of Rs.5,000, in default of payment of fine, further R.I. for two months, rendered by learned Sessions Judge, Bongaigaon vide Judgment and order dated 30.3.2002 in Sessions Case No. 52(B)/1998, have been assailed in this appeal being preferred by the Appellant from jail. 3. The facts in brief as projected by the prosecution in the FIR are that one Md. Nurul Islam, PW1, on 26.11.1995 lodged an 'ejahar' with the Bijni Police Station alleging that on the same day i.e., on 26.11.1995 around 2:30 p.m. his nephew, the Appellant, hacked his mother Mustt. Nabiran Nessa ('the deceased') to death by means of a 'dao' and when his niece Mustt. Hanufa Khatun surrounded him in order to save her mother, the Appellant inflicted 'dao' blow on her person too. 4. On the basis of the said 'ejahar', investigation ensured. On completion of the investigation, the police chargesheeted the Appellant under Section 302 IPC and sent for trial. The case being exclusively triable by the Court of Sessions is committed to the Sessions Court, Bongaigaon. 5. The learned trial Judge having gone through the chargesheet so filed by the police and also taking into account the entire records, farmed charge against the Appellant under Section 302, IPC. During trial, the prosecution examined as many as ten witnesses including two official witnesses, namely, PW9 (Nagen Ch. Kalita), the Investigating Officer (I.O.) and PW10 (Dr. Gopendra Mohan Das), the doctor who conducted autopsy on the person of the deceased. 6. On completion of the trial, the learned Sessions Judge having closely appreciated the evidence on record and upon hearing learned Counsel for the parties, convicted and sentenced the Appellant as already indicated above. Hence, this appeal from jail. 7. Mr. Gopendra Mohan Das), the doctor who conducted autopsy on the person of the deceased. 6. On completion of the trial, the learned Sessions Judge having closely appreciated the evidence on record and upon hearing learned Counsel for the parties, convicted and sentenced the Appellant as already indicated above. Hence, this appeal from jail. 7. Mr. Dutta, learned amicus curiae, assailing the impugned conviction and sentence of the Appellant, has forcefully argued that the impugned conviction and sentence had been basically based on the evidence of PW2 (Ashmat Ali), PW4 (Aziron Bibi) and PW8 (Hanufa Khatun), who were projected by the prosecution as eye-witnesses although all of them were declared hostile inasmuch as the trial court accepting the evidence of those witnesses, expressed that though they were all declared hostile, their evidence on the basic point could not be ignored. According to the learned amicus curiae, the view taken by the learned Sessions Judge convicting the Appellant was absolutely perverse. His contention is that once all those witnesses abovementioned, being declared hostile, they failed to place correct picture of the entire incident so as to pinpointly indicate the involvement of the Appellant in the offence and under such circumstances, the testimony of so called eye-witnesses, namely, PW2, PW4 and PW8 cannot be the basis of conviction. At the same breath, the learned amicus curiae has also contended that the trial court also relied upon the circumstantial evidence so as to rope the Appellant in the offence under Section 302, IPC. The circumstances herein,.as narrated by witnesses, particularly, PW3 (Keramat Ali), PW5 (Jaynal Abedil Khandakar), PW6 (Nijam Ali) and PW7 (Akabar Ali), failed to prove the circumstances so as to complete the chain of circumstances as required under the law. That being the position, the Appellant cannot even be convicted under the circumstantial evidence as held by the trial court. 8. Per contra, Mr. That being the position, the Appellant cannot even be convicted under the circumstantial evidence as held by the trial court. 8. Per contra, Mr. K.C. Mahanta, learned Public Prosecutor in support of the conviction and sentence, has strenuously submitted that admittedly though PW2, PW4 and PW8 were declared hostile, the entire deposition of those witnesses would unerringly go to reflect that they were present at the time of occurrence and they made statements to this effect before PW9 (I.O.) as regards the involvement of the Appellant and PW9, in his deposition clearly deposed that all those witnesses, i.e., PW2, PW4 and PW8, according to their version, at the relevant point of time the Appellant was standing at the courtyard armed with a bloodstained 'dao' in his hand. Even PW8, who suffered injury due to the assault inflicted by the Appellant claimed that it was the Appellant only, her brother who hit her mother with the 'dao'. In such premises, according to the learned Public Prosecutor, no error either in facts or law was committed by the trial court in accepting the evidence of PW2, PW4 and PW8, though hostile, and the all circumstances were also proved against the Appellant indicting his involvement in killing the deceased and as such the impugned conviction and sentence of the Appellant need no interference of this Court. 9. We have given our anxious consideration to the extensive submissions made by the learned Counsel for the parties, i.e., the learned amicus curiae and the learned Public Prosecutor and we also scrupulously analyzed and evaluated the entire evidence on record so projected by the prosecution, particularly of aforesaid those three eyewitnesses who were declared hostile, i.e., PW2, PW4 and PW8 including the official witnesses PW9 (I.O.) and PW10 (the Doctor). 10. It is pertinent to refer herein the medical evidence in this contest so as to have a close look on the injury so inflicted upon the deceased. 11. PW10, the Doctor while performing autopsy on the person of the deceased found the following injury: Injuries. Sharp cut injury over the occipital region of scalp 4" x 2" x 2" deep size transversely. Fracture of occipital bone of skull present and Hematite of cerebellum of the brain was present. Injury was ante-mortem in nature. 11. PW10, the Doctor while performing autopsy on the person of the deceased found the following injury: Injuries. Sharp cut injury over the occipital region of scalp 4" x 2" x 2" deep size transversely. Fracture of occipital bone of skull present and Hematite of cerebellum of the brain was present. Injury was ante-mortem in nature. The Doctor in his opinion stated that the cause of death was due to shock and haemorrhage as a result of grievous head injury. 12. The above medical evidence would apparently demonstrate that the deceased was inflicted with one sharp cut injury which became fatal, meaning thereby, the Appellant struck a single fatal blow on the head of the deceased causing the instant death. It has come on record that before causing such injury there was an altercation between the deceased and the Appellant who were mother and son respectively. It also transpires that the incident took place out of sudden provocation due to altercation between them and as a result of such provocation, the Appellant who armed with a "dao" in his hand struck the fatal blow. 13. Under such factual premises, we hold that due to immediate and sudden provocation generated out of altercation between the deceased and the Appellant on the spur of moment the Appellant gave such fatal single blow. However, we have no hesitation to hold that the Appellant must have knowledge that by causing such injury with a 'dao', the deceased ought to have died. 14. Having considered the facts and circumstances in its totality and keeping in view mitigating circumstances, we are of the considered view that it is not a case for conviction of the Appellant under Section 302, IPC. At best, it would be a case to come within the purview of Section 304, Part-I, IPC. Accordingly, we set aside the impugned conviction and sentence of the Appellant of R.I. for life under Section 302, IPC and accordingly convict him to Section 304, Part-I, IPC modifying the sentence of R.I. for life to imprisonment for 10(ten) years under Section 304, Part-I, IPC. 15. In the result, this appeal stand partly allowed to the extent of modification of conviction and sentence of the Appellant as indicated above. 16. Send down the LCR forthwith. 17. Before parting with the case, we would like to put on record our appreciation to Mr. 15. In the result, this appeal stand partly allowed to the extent of modification of conviction and sentence of the Appellant as indicated above. 16. Send down the LCR forthwith. 17. Before parting with the case, we would like to put on record our appreciation to Mr. A. Dutta, for his valuable assistance rendered in arriving at a decision above-recorded in this case as amicus curiae. Accordingly, it is ordered that he is entitled to professional fees which is quantified at Rs.5,000.