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2009 DIGILAW 331 (GAU)

Abdul Kuddus Ali v. State of Assam

2009-05-16

HRISHIKESH ROY, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. The two accused-Appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code by the judgment and order dated 15.7.2006 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 43/05. Aggrieved by the aforesaid conviction and sentence imposed, this appeal has been filed. 2. The prosecution case in short is that at about 4.15 p.m. of 4.4.1999, P.W.3, Md. Tale Mia lodged a F.I.R. in the Barpeta Police Station stating that Md. Jaher Ali and Sattar Ali, both sons of Kuddus Ali and Kuddus Ali, son of Hajrat Ali had assaulted one Akbar Ali with a 'lathi' and when the aforesaid person had fallen down on the ground the aforesaid accused persons had killed him by stabbing him in his head with a spear, as a result of which, Akbar Ali died on the spot. In the F.I.R. filed, it was also mentioned that the wife of Kuddus Ali one Sahera Khatun had supplied the arms to the accused persons at the place of occurrence. 3. On the basis of the aforesaid F.I.R., Barpeta P.S. Case No. 272/99 under Sections 302/34 IPC was registered. In the course of the investigation, the police visited the place of occurrence, prepared a sketch map of the place of occurrence, carried out certain seizures and recorded the statements of a large number of persons. Inquest was held on the dead body which was also sent for post mortem examination. At the conclusion of the investigation, chargesheet was submitted against Kuddus Ali, Hayet Ali, Sattar Ali and Sahera Khatun. The offence alleged being triable exclusively by the Court of Sessions, the learned CJM, Barpeta by the order dated 19.5.2005, committed the case to the Court of Sessions at Barpeta. 4. In the Trial Court charge under Sections 302/34 IPC was framed against the aforementioned four accuseds who pleaded not guilty and claimed to be tried. In the course of trial, as many as eight witnesses were examined by the prosecution. No defence witness was examined. However, the statements of the accuseds were recorded under Section 313 Code of Criminal Procedure. In the Trial Court charge under Sections 302/34 IPC was framed against the aforementioned four accuseds who pleaded not guilty and claimed to be tried. In the course of trial, as many as eight witnesses were examined by the prosecution. No defence witness was examined. However, the statements of the accuseds were recorded under Section 313 Code of Criminal Procedure. At the conclusion of the trial, the learned Trial Court by the impugned judgment and order convicted the accused-Appellants Abdul Kuddus Ali and Abdul Sattar Ali for the offence under Sections 302/34 IPC and the sentence, as already noticed, has been imposed on them. The remaining two accused had been acquitted by the Trial Court. Aggrieved by the aforesaid conviction, the two Appellants are before the Court by means of the present appeal. 5. At the outset, the core of the evidence tendered by the prosecution witnesses may be noticed: P.W.1 Dr. Tilak Pathak conducted the post mortem examination on the dead body of the deceased. The findings of the post mortem, as deposed to by P.W.1 on the basis of the post mortem report (Exhibit-1), may be conveniently set out hereunder: (1) One deep cut injury on middle of the head, size 6 c.m. x 3 c.m. into upto brain matter, cut margin sharp. (2) One deep cut injury just over the right ear on head, size 5 cm X 2 cm upto brain matter, cut margin sharp. (3) One haematoma just over the right eyebrow, size 3 cm x 2 cm black in colour. (4) One bruise over the back of the neck, size 6 cm x 2 cm, black in colour. (5) One bruise over the back of left elbow joint, size 4 cm x 2 cm, black in colour. (6) One bruise over the back on the left side on middle part, size 7 cm x 2 cm, black in colour. Ante-mortem blood-clot found in and around in injured tissue. Injury No. 1 and No. 2 caused by sharp weapon and Nos. 3, 4 and 5 are caused by blunt weapon. Scalp: Skull and scalp middle part one cut injury over right ear. Membrane: Cut in middle part on and just over right ear. Brain Matter cut in middle part with vessels. Brain matter cut on the region just over the right ear. All the findings are antemortem in nature. 3, 4 and 5 are caused by blunt weapon. Scalp: Skull and scalp middle part one cut injury over right ear. Membrane: Cut in middle part on and just over right ear. Brain Matter cut in middle part with vessels. Brain matter cut on the region just over the right ear. All the findings are antemortem in nature. Ante-mortem blood clots are found in and around the injured cut tissues. OPINION: In my opinion cause of death is due to shock and haemorrhage as a result of injuries sustained. The nature of weapon was both sharp and blunt. Ext. 1 is the post mortem report and 1(1) is my signature. Ext. 1(2) is the signature of Joint Director of Health Services, Barpeta which I know. XXXX (Cross): (for accused Hayet Ali) Sharp cutting weapons may be like dao, dagger etc. It is not pointed. If a person repeatedly falls on a blunt weapon more than 5 times, then such type of injury may be caused. Haematoma may be caused by facing in a hard substance. 6. P.W.2 Lalchan Ali Ahmed is the author of the FIR who, in his deposition, had stated that the FIR was written by him as per instructions of P.W.3 Md. Tale Mia. 7. P.W.3 Md. Tale Mia, the first informant, claims to be an eye witness to the occurrence. He is the brother of deceased Akbar Ali. According to P.W.3, the occurrence took place at day time in a paddy field. This witness has deposed that while he was working in his own field he was informed by his servant one Rafez that a 'mar-pit' was going on, hearing which, he proceeded to the place of occurrence and found the accused persons coming from the said place. According to P.W.3, Akbar Ali was lying dead at that time. The cross-examination of this witness had revealed that accused Kuddus is his own brother and accused Sattar is his nephew. 8. P.W.4 Sagar Ali is another eye witness to the incident who at the relevant point of time was working as a day labourer in the house of Akbar Ali. According to P.W.4, at about 1 p.m. of the day of occurrence he along with P.W.6 Ali Hussain and one Boga were working together. 8. P.W.4 Sagar Ali is another eye witness to the incident who at the relevant point of time was working as a day labourer in the house of Akbar Ali. According to P.W.4, at about 1 p.m. of the day of occurrence he along with P.W.6 Ali Hussain and one Boga were working together. P.W.4 has deposed that accused Sattar had let loose his cows on the cultivation of Akbar Ali over which matter a dispute had occurred in the course of which, accused Kuddus assaulted deceased Akbar Ali with a 'lathi' and accused Sattar assaulted Akbar with a 'fala' on his head. 9. P.W.5 Mustt. Moijan Khatoon who was examined by the prosecution as another eye witness in the case had deposed that on the day of occurrence while she was working at her house she heard some commotion and, thereafter, proceeded to the place of occurrence. On reaching there P.W.5 saw that accused Kuddus, Sattar, Jaher, Hayet Ali and Sahera Khatun were assaulting the deceased. P.W.5 has also deposed that all the accused were armed with 'lathi', 'fala' etc. P.W.5 is co-incidentally the wife of the deceased. 10. P.W.6 Ali Hussain also claims to be an eye witness to the occurrence. This witness had deposed that on the day of occurrence he along with deceased Akbar and one Nayeb (P.W.7) and Sagar Ali (P.W.4) were working together. P.W.6 has deposed that while he was carrying a basket of 'Dhonia' towards the house of deceased Akbar, he saw accused Hayet, Sattar, Kuddus as well as Sahera Khatun armed with 'lathi' and 'fala' crossing him. This witness has further stated that accused Kuddus rebuked him and had also threatened to assault him. Thereafter, according to P.W.6, accused Kuddus apprehended deceased Akbar while accused Sattar assaulted him with a 'lathi'. 11. P.W.7 Nayeb Ali has corroborated the evidence of P.W.6 except that, according to this witness, it is accused Sattar who had caught deceased Akbar and accused Kuddus had give 'lathi' blows to the deceased. 12. P.W.8 Bisweswar Singha is the Investigating Officer of the case who, in the course of the description of the investigation carried out, had stated that by Exhibit-4 (seizure list) he had seized one dagger and one bamboo 'lathi' from the house of accused Kuddus. 13. 12. P.W.8 Bisweswar Singha is the Investigating Officer of the case who, in the course of the description of the investigation carried out, had stated that by Exhibit-4 (seizure list) he had seized one dagger and one bamboo 'lathi' from the house of accused Kuddus. 13. On the basis of the above evidence, Sri J.M. Choudhury, learned senior counsel for the accused-Appellants has made a two fold submission. According to Sri Choudhury, the prosecution evidence with regard to commission of assault by the accused persons is inconsistent. In this regard, Sri Choudhury has pointed out that though, according to P.W.4 only Kuddus and Sattar were involved in the commission of the assault on the deceased, according to P.W.5, the assault on the deceased was by all the accused persons i.e. Kuddus, Sattar, Jaher, Hayet and Sahera Khatun. Sri Choudhury has also pointed out the inconsistency in the evidence of P.W.6 and P.W.7 with regard to the particular accused who had caught the deceased Akbar Ali and the accused who had assaulted Akbar with a 'lathi'. On the basis of the aforesaid inconsistencies, it is the argument of Sri Choudhury, learned Counsel for the accused-Appellants, that the prosecution case lacks inherent credibility and, therefore, should be disbelieved by the Court. 14. Sri Choudhury has further urged that the evidence of the prosecution witness even if it is to be accepted, would at best show use of a 'lathi' and a 'fala' in the course of commission of the offence. Referring to the medical evidence tendered by P.W.1 particularly, with regard to the injury Nos. 1 and 2 recorded in the post mortem report (Exhibit-1), Sri Choudhury has submitted that the said two injuries are deep cut injuries reaching the region of the brain which cannot be caused by a 'fala'. Sri Choudhury has pointed out that though 'fala' is a sharp weapon it is made from bamboo and the possibility of causing injury Nos. 1 and 2 by use of the said weapon is remote. In this regard, Sri Choudhury has further pointed out that though a 'lathi' was seized from the house of accused Kuddus by means of the seizure list (Exhibit-4), no 'fala' had been seized and instead a dagger was recovered. According to Sri Choudhury, none of the prosecution witnesses had deposed with regard to the use of dagger by any of the accused persons. According to Sri Choudhury, none of the prosecution witnesses had deposed with regard to the use of dagger by any of the accused persons. On the aforesaid basis, Sri Choudhury has submitted that the injury Nos. 1 and 2, which were the fatal injuries, cannot be said to have been caused by any of the accused persons on the basis of the evidence tendered by the prosecution witnesses. 15. Controverting the submissions advanced on behalf of the accused-Appellants, Sri K.C. Mahanta, learned Public Prosecutor has vehemently contended that a 'fala', though made out of bamboo, is a sharp weapon. Sri Mahanta has drawn the attention of the Court to the observations made by the learned Trial Judge with regard to the nature of the weapon that is known as 'fala' in local dialect The learned Public Prosecutor has urged that whether a 'fala' can cause injury Nos. 1 and 2 is a matter of expert evidence and, therefore, the Court should not enter into the said question and cause any disturbance in the finding recorded by the learned Trial Court. 16. The rival submissions advanced on behalf of the parties have received our most anxious consideration. Though there appears to be some variance in the evidence tendered by the prosecution witnesses with regard to the involvement of the accused persons in the offence alleged and also with regard to the manner in which the same was committed, the Court is of the view that the said differences do not amount to serious inconsistencies so as to erode the credibility of the prosecution witnesses. In fact, on reading the evidence of P.Ws. 4, 5, 6 and 7, the Court is satisfied that from the evidence tendered by the said witnesses it is possible to come to the conclusion that the deceased was assaulted by the present accused-Appellants i.e. Kuddus Ali and Sattar Ali with a 'lathi' and a 'fala'. If that be the conclusion of the Court, the next question that will have to be dealt with is the liability of the accused-Appellants for commission of the aforesaid offence. If that be the conclusion of the Court, the next question that will have to be dealt with is the liability of the accused-Appellants for commission of the aforesaid offence. Though no argument has been advanced on behalf of the accused-Appellants with regard to the common intention of the accuseds, the Court is satisfied that having regard to the circumstances in which the assault was committed as deposed to by the prosecution witnesses, the core of which have been reproduced earlier, it can be reasonably inferred that both the accused had shared a common intention to do a criminal act. 17. The learned Trial Judge has described a 'fala' as "a sharp weapon having both sides sharp edged and such weapon can cause both cut injuries as well as punctured injuries. If by such weapon anybody is pushed, the punctured injuries may be caused and if with such weapon blow is given cut injury may be caused" (Page 73 of the paper book). In the absence of the seizure of the 'fala' involved in the present case, we will understand that the aforesaid observations of the learned Trial Judge were recorded on the basis of the learned Judge's own perceptions of the weapon commonly known as 'fala'. 18. Even proceeding on the basis that a 'fala' is a sharp weapon having sharp edges on both sides, what cannot be ignored is that such a weapon is basically a weapon made from bamboo. Though a sharp weapon even made from bamboo can cause cut injuries there will be inherent limitations in such a weapon reaching a particular depth in the body of a victim particularly, in the region of the skull, as in the present case. 19. In the present case, as evident from the deposition of P.W.1, both injury Nos. 1 and 2 were deep cut injuries, one in the middle of the head and the other over right ear reaching in depth upto the brain matter. Such injuries naturally would require penetration of the skull and the bone to reach the brain matter. Having regard to the weapon with which the assault was found to have been committed i.e. 'fala', we have serious doubts whether such a weapon though having sharp edges, being made from bamboo, can cause deep penetrating cut injuries in the head upto the brain matter. Having regard to the weapon with which the assault was found to have been committed i.e. 'fala', we have serious doubts whether such a weapon though having sharp edges, being made from bamboo, can cause deep penetrating cut injuries in the head upto the brain matter. It was really for the prosecution to establish the said fact by adducing expert evidence. Neither any such expert was examined nor the weapon used in the assault was seized to enable even P.W.1, the doctor, to tender his opinion as to the possibility of injury Nos. 1 and 2 being caused by such a weapon. The absence of any such evidence having given rise to serious doubts in our minds, we are of the view that the benefit of such doubt must go to the accused persons. On the basis of the aforesaid discussions we are left convinced that the accused-Appellants cannot be held responsible for commission of the offence under Sections 302/34 IPC. 20. Notwithstanding our conclusion recorded above, we find that the prosecution evidence with regard to the commission of assault on the deceased by the two accused-Appellants with 'lathi' and 'fala' is clear and categorical. The grounds urged on behalf of the accused-Appellants to persuade the Court to discard the prosecution evidence on this score have been found to be acceptable by us. The other injuries on the body of the deceased as recorded in the post mortem report (Exhibit-1), on due consideration, appears to be grievous injuries. Such injuries, surely, must have been caused by the two accused-Appellants. We have already recorded our view that on the materials available common intention of the accused persons can be inferred. In such circumstances, we are of the view that the accused-Appellants are liable to be convicted under Sections 325/34 IPC. 21. Consequently, we alter the conviction of the accused-Appellants to one under Sections 325/34IPC and sentence them to undergo rigorous imprisonment for a period of three years. The materials on record show that the accused-Appellants were in custody immediately after their arrest i.e. from 5.4.99 till they were released on bail on 5.7.99 i.e. for 90 days. The accused-Appellants have also been in custody since the date of the impugned judgment i.e. 15.7.2006. The above facts would indicate that the accused-Appellants have already suffered detention in custody for a total period of three years and one month. The accused-Appellants have also been in custody since the date of the impugned judgment i.e. 15.7.2006. The above facts would indicate that the accused-Appellants have already suffered detention in custody for a total period of three years and one month. We, therefore, direct that the sentence awarded by the present order be set off against the period of detention already suffered and the accused-Appellants be released forthwith, if their custody is not required in connection with any other case. 22. Consequently and in the light of the above discussions, the appeal stands partly allowed to the extent indicated above.