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2008 DIGILAW 645 (GAU)

Hasmat Ali v. State of Assam

2008-09-02

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mrs. S.D. Baruah, learned Amicus Curiae appearing for the Appellant from jail well as Mr. K.C. Mahanta, learned P.P., Assam. 2. Both the Appellants from jail have challenged their conviction under Sections 302/34, IPC and sentence to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default to undergo three months further Rigorous Imprisonment (for short, 'the R.I.') so imposed by the learned Session Judge, Karimganj by his judgment and order dated 19.1.2002 passed in Session Case No. 31/98. 3. PW-1 Adbul Latif, the father of Majiruddin (hereinafter referred to as, the deceased) lodged an FIR with the Ratabari Police Station on 22.5.97 alleging that around 7 a.m. on 21.5.07 (Yesterday) the accused persons/Appellants attacked his son-the deceased while he was sitting in front of the shop of Farjan Ali (not examined by the prosecution) and watching fishing thereon. The Appellant No. 1 Hasmat Ali, according to the informant (PW-1) hit his son with lathi where the other accused-Appellant No. 2 Ajmat Ali kicked the deceased and dealt him fist blow on other parts of the body, causing injuries. Accordingly, the police registered a case under Sections 325/307/34, IPC. However, two days after the deceased died due to such injuries and the police added Section 302, IPC. The police filed the charge-sheet against the 2 accused persons under Sections 302/325/34, IPC on completion of the investigation. 4. In course of the trial, the prosecution examined as many as 11 witnesses including 7 eye witnesses namely, PW-2, Abdul Jalil, PW-3, Jabed Ali, PW-4, Mahabat Ali, PW-5, Furkan Ali, PW-6, Sunamuddin, PW-7, Sridhan Singha and PW-8, Matahir Ali and 3 official witnesses namely, PW-9 Dr. N. Begum who examined of the deceased when he was brought injured, PW-10 K.K. Bhattacharjee, the Investigating Officer, (for short, 'the I.O.') and PW-11 Dr. K.K. Chakravorty who conducted postmortem examination of the dead body of the deceased. 5. The learned Sessions Judge, Karimganj on proper appreciation of the testimony of those witnesses and also upon hearing the learned Counsel for the parties convicted and sentenced the Appellants as indicated above. 6. Basically the conviction has been based on the testimony of the 7 eye witnesses as mentioned above. 7. 5. The learned Sessions Judge, Karimganj on proper appreciation of the testimony of those witnesses and also upon hearing the learned Counsel for the parties convicted and sentenced the Appellants as indicated above. 6. Basically the conviction has been based on the testimony of the 7 eye witnesses as mentioned above. 7. Upon close consideration of those witnesses, we have found that all those witnesses were in agreement in deposing that both the Appellants assaulted the deceased and in the said assault, the Appellant No. 1 used lathi and the Appellant No. 2 dealt kist blows and kicks for which the deceased, as per medical evidence of PW-11 Dr. K.K. Chakravorty suffered various injuries on his person which are as follows: Injuries: 1. Contusion right chest wall in back along with scapular region 11 × 1½ cm bluish in colour. 2. Contusion 5 cm below the injury No. 13×1 cm bluish in colour. 3. Contusion left side of chest wall in back along the scaputor region 3 × 1½ cm bluish in colour. 4. Abrasion in lumber region in back 2×1 cm covered by radish brown scab. 5. Abrasion left ankle in front 2 × 1 cm covered by radish brown scab. 6. Abrasion right side of forehead over an area of 3 × 2 cm covered by radish brown scab. Dr. PW-11 in his opinion stated that all those injuries were ante-mortem about 2-3 days old caused by blunt object. 8. Medical evidence as regard use of blunt weapon had been corroborated by those eye witnesses that Appellant No. 1 Hasmat Ali used lathi and the other accused Appellant No. 2 dealt kist blows and kicks. The being so, we have no hesitation to hold that both the Appellants were involved in assaulting the deceased by lathi blows and kicks which resulted in death of the deceased. 9. Having considered the entire facts and circumstances of the case in its entirety based on those eye witnesses as well as keeping in view the medical evidence as quoted above, we find that the Appellants committed culpable homicide not amounting to murder, as it appears to us, the incident by which the injuries were caused with the intention of causing death or of causing such fatal injuries as was likely to cause death. That being so, we are the considered view that conviction of the Appellants under Section 302, IPC cannot be sustained. At best, it is a case under Section 304, Part-I, IPC and accordingly, we set aside the conviction of the Appellants under Section 302, IPC and instead convict the Appellants under Sections 304, Part-I, IPC and sentence them to undergo imprisonment for 10 years. 10. In the result, this appeal stands partly allowed to the extent of modification of the conviction and sentence as indicated above. 11. Send down the LCR forthwith. 12. Before parting with the judgment, we would like to put on record our appreciation to Mrs. S.D. Baruah, learned Amicus Curiae for her valuable assistance rendered to arrive at a conclusion in the abovementioned appeal. Accordingly, we order that she is entitled to get her professional fee which is quantified at Rs.5000/-. Appeal allowed.