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2009 DIGILAW 332 (GAU)

Samsul Haque @ Samsul Doctor v. State of Assam

2009-05-16

HRISHIKESH ROY, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. This appeal by the five Appellants is against the judgment and order dated 05.05.2006 passed by the learned Ad hoc Additional Sessions Judge, F. T. C., Bongaigaon, in Sessions Case No. 11(D)/2000. By the aforesaid judgment and order the learned trial Court has convicted the five Appellants under Sections 148/342/302/149 of the Indian Penal Code. The Accused-Appellants have been sentenced to undergo rigorous imprisonment for three years each under Section 148 IPC; rigorous imprisonment for one year each under Sections 342/149 Indian Penal Code and life imprisonment along with fine of Rs. 2,000/- (Rupees two thousand) each, in default, to suffer rigorous imprisonment for six months more for the offence under Sections 302/149 IPC. 2. The prosecution case, in short, is that on 08.09.1998 at about 4 p.m., PW 3 Taizuddin Sarkar lodged an Ejahar in the Dhaligaon Police Station, alleging that at about 7 p.m. of 06.09.1998, accused Samsul Haque had invited his son Saijuddin Sarkar to his house. According to the first informant, his son, not being able to locate the accused Samsul Haque in his house went to the nearby house of Abdul Rauf. It was alleged in the FIR filed that at that time the accused persons named in the FIR, 14 in number, had forcibly tied his hands and beaten him up with lathis (sticks) causing grievous injuries all over his person. Furthermore, according to the first informant on getting the information in the early morning of 07. 0 9.1998, the first informant along with five others went to the spot and found the hands of the son of the first informant tied with rope. In the FIR filed it was further alleged that the accused persons had forcibly obtained the signature of the first informant on a deed of compromise and that they also realized a fine of Rs. 2001/- (Rupees two thousand one) after which the first informant along with his son had returned home at about 10 a.m. Thereafter, according to the first informant, his son died in the morning of 08.09.1998. 3. On the basis of the aforesaid FIR lodged by PW 3, Dhaligaon PS Case No. 68/1998 was registered under Sections 147/342/325/384/302 IPC. Police investigated the offence alleged in the course of which inquest was performed on the dead-body, which was also sent for postmortem examination. 3. On the basis of the aforesaid FIR lodged by PW 3, Dhaligaon PS Case No. 68/1998 was registered under Sections 147/342/325/384/302 IPC. Police investigated the offence alleged in the course of which inquest was performed on the dead-body, which was also sent for postmortem examination. The Investigating officer recorded the statements of a large number of witnesses. On completion of investigation, charge sheet was submitted against the thirteen of the fourteen accused persons named in the FIR. One accused was shown as an absconder. Some of the offences alleged being exclusively triable by the Court of Sessions, the learned Sub Divisional Judicial Magistrate (S), Bongaigaon, by order dated 04.01.2000 committed the case for trial to the Court of Sessions at Bongaigaon. The case was endorsed to the learned Additional Sessions Judge, F. T. C., Bongaigaon, for disposal. In the trial Court charge was framed against twelve accused of the accused persons. One accused, Abdul Barrak, died during the course of the trial. Fourteen witnesses were examined in support of the prosecution case whereas two defence witnesses were examined. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. Thereafter, by the impugned judgment, while the five Accused-Appellants have been convicted and sentenced, as aforesaid, the remaining six accused persons were acquitted. No appeal had been filed against the order of acquittal. 4. Out of the fourteen witnesses examined in the case by the prosecution, the evidence of PWs 7 and 8 would not be relevant for the purpose of the present consideration. PWs 12 and 13 are the Investigating officers of the case. PW14 is the doctor, who performed the postmortem examination of the deceased. The evidence of the said witness, i.e., PW 14 being relevant, may be extracted below: A healthy dead body of average built brought with the following findings -- (1) Rigor mortis present in both upper and lower limbs. Eyes--Closed. Mouth--Closed. Hands--Half clinced. Injuries: 1. One contusion over right forearm avgove right wrist in the exterior surface, 4 cm x 1 cm. 2. Contusion over left arm, 0.5 cm. x 0.5 cm. 3. Contusion over left side of the chest in the enterior axillary line, 2 cm.X 1 cm. and swelling over both parietal region 2 cm. X 2 cm. No forcees or urinary leakage from annus or penis. 2. Contusion over left arm, 0.5 cm. x 0.5 cm. 3. Contusion over left side of the chest in the enterior axillary line, 2 cm.X 1 cm. and swelling over both parietal region 2 cm. X 2 cm. No forcees or urinary leakage from annus or penis. Examination of cranium and spinal cord -- Swelling over both parietal region with contusion, 2 cm. x 2 cm. Membrane -- Contusion over both parietal region subdural haematoma present in the right parietal region with marginal contusion of the wounds. Brain -- Slight contusion over right hemisphere of the brain. Thorax -- Healthy. Abdomen -- Healthy. Liver, Spleen, Kidney, bladder and external genetaila: Healthy. Opinion -- In my opinion death was due to intracranial haemorrhage following injuries sustained by deceased which are ante mortem in nature. Ext. 3 is the post mortem report. Ext. 3 (1) is my signature. X X X Contusion over right forearm, left arm, left side of the chest and parietal region are the external injuries which were found on the deceased and these external injuries only are not sufficient to cause the death of the deceased. I also found internal injuries on the person of the deceased as mentioned in ext. 3 as well as in my evidence in examination in chief. The injuries external and internal found on the person of the deceased may not be caused due to the application of some medicine. Of the remaining witnesses, i.e., PWs 1, 2,4 and 5 are the alleged eyewitnesses with regard to the assault committed by the accused persons before the father of the victim, i.e., PW 3, had reached the spot in the early morning of the next date. PWs 3, 6, 9, 10 and 11 are the eyewitnesses to the incident after the father of the deceased had reached the spot. 5. We have perused the evidence of the aforesaid witnesses. Such perusal has revealed that the first set of witnesses have implicated all the five accused-Appellants and some others in the incident of assault committed on the deceased prior to the father of the deceased reaching the spot in the early hours of the next day. The second set of witnesses, i.e., PWs 3, 6, 9, 10 and 11, have implicated the accused, namely, Mokbul Hussain in respect of the assault committed after the arrival of the deceased's father. The second set of witnesses, i.e., PWs 3, 6, 9, 10 and 11, have implicated the accused, namely, Mokbul Hussain in respect of the assault committed after the arrival of the deceased's father. However, what we must notice is that all the witnesses, though have implicated the accused-Appellants, the common thread in the evidence of the said witnesses is that the accused-Appellants and others had assaulted the deceased with lathis (sticks) on various parts of the body without, however, mentioning any specific region of the body on which such assault was committed. No witness has testified that the accused-Appellants had assaulted the deceased on the head, a fact, which will have an important bearing when the medical evidence on record is considered to determine the culpability of the accused-Appellants. 6. On the basis of the evidence tendered by the prosecution witnesses, Sri B. D. Konwar, learned Counsel for the accused-Appellants has urged that there is a discrepancy with regard to the time when the first incident of assault took place. Sri Konwar has pointed out that the deposition of PW 1 shows that the said incident had occurred at around 9 p.m. while PWs 2, 4 and 5 had deposed that the said occurrence took place at 1 a.m., i.e., at midnight of the same day. On the basis of the aforesaid discrepancy, Sri B. D. Konwar, learned Counsel for the accused-Appellants has submitted that a doubt arises as to the veracity of the prosecution version. Sri Konwar has further pointed out that PWs 3 and 6 have deposed that they had noticed injuries on the back, chest, hands and legs of the deceased but none of them have deposed with regard to any head injuries. In fact none of the witnesses examined by the prosecution has deposed with regard to any assault on the head of the deceased by any of the accused-Appellants. Learned Counsel for the accused-Appellants has further pointed out that in the present case even if an unlawful assembly consisting of the accused-Appellants is to be accepted, the conviction of the accused-Appellants under the provisions of Sections 302/149 Indian Penal Code is not tenable in law in the absence of any evidence capable of implicating any of the accused with the fatal injury, i.e., the head injury suffered by the deceased. In this regard Sri Konwar has also drawn the attention of the Court to the medical evidence tendered by PW 14, which would go to show that the death of the deceased was due haemorrhage caused by internal injuries on the head. 7. Opposing the arguments advanced by the learned Counsel for the accused-appellants, Sri K. C. Mahanta, learned Public Prosecutor, Assam, has vehemently argued that the evidence of PW 14 clearly shows that the death was caused by the injuries suffered by the deceased on the head and though the evidence on record may not indicate that any particular accused had inflicted the head injuries, as the common object of the accused-Appellants to cause death is clearly proved and established, all the accused-Appellants must be held to be liable under Section 302 Indian Penal Code by virtue of the provisions of Section 149 IPC. In this regard it is the further contention of the learned Public Prosecutor that there is nothing in the evidence of the prosecution witnesses, which would enable the Court to disbelieve the testimony of the said witness. 8. The arguments advanced by the learned Counsel for the accused-Appellants with regard to discrepancy of time and the absence of any evidence with regard to visible signs of injuries on the head cannot be accepted on a proper consideration of the evidence on record. PW 1 in her evidence had mentioned that the first visit of the deceased to her house was at 9 p.m. The evidence of the said witness has revealed that the deceased had come to her house on a second occasion, being unable to locate Samsul Haque, and that thereafter Samsul Haque and two other accused persons had come to her house in search of the deceased. The evidence of PW 1 would go to show that it is the first visit of the deceased to her house and not the incident which was at 9 p.m. If the evidence of the said witness is read in the above manner, there cannot be any discrepancy in the evidence of the prosecution witnesses. The evidence of PW 1 would go to show that it is the first visit of the deceased to her house and not the incident which was at 9 p.m. If the evidence of the said witness is read in the above manner, there cannot be any discrepancy in the evidence of the prosecution witnesses. In so far as the absence of visible signs of injuries on the head of the deceased is concerned, while it is correct that none of the prosecution witnesses had mentioned noticing any head-injury on the body of the deceased, the evidence of PW 14 indicates that the head-injuries suffered by the deceased were internal injuries leading to the haemorrhage. If that be so, the evidence of PWs 3 and 6 will have to be construed in an appropriate manner. 9. The evidence of the prosecution witnesses makes it clear that the accused persons had levelled an allegation of theft of a bicycle and in this connection Samsul Haque had summoned the deceased to his house. When the deceased had gone to meet Samsul Haque and had finally met him in the house of Abdul Rouf, the accused-Appellants assaulted the deceased with lathis. It is in the above facts that the Court has to come to a conclusion with regard to the common object of the accused. The assault by the accused Appellants on the body of the deceased with lathis and the holding of 'bichar' (trial) over the issue in the presence of the deceased's father in the next morning, in our considered view, are relevant facts to indicate that the common object of assembly of the accused-Appellants was to cause to cause bodily injury to the deceased, perhaps, to teach him a lesson and not to cause death. If that is the common object of the accused-Appellants, naturally, the liability of the accused-Appellants, if any, under Section 302 Indian Penal Code will have to be determined on the basis of the individual acts of the accused-Appellants, identification of which will be the next exercise to be performed by the Court. 10. The evidence of PW 14 with regard to the cause of death has already been noticed. Death, in the present case, according to the expert witness, was caused due to internal haemorrhage occasioned by internal injuries suffered by the deceased on his head. 10. The evidence of PW 14 with regard to the cause of death has already been noticed. Death, in the present case, according to the expert witness, was caused due to internal haemorrhage occasioned by internal injuries suffered by the deceased on his head. It will, therefore, be necessary for the Court to find out from the evidence on record as to whether any particular accused can be held responsible for causing any injury/injuries to the deceased on his head. As already noticed, the prosecution witnesses, though had stated that the accused-Appellants along with other acquitted accused persons had assaulted the deceased with lathis on different parts of the body, none of the said witnesses had stated about any particular accused causing any injury on the head of the deceased. If this is the prosecution evidence on record, naturally, none of the accused-Appellants can be held liable for the head injuries leading to the death of Saijuddin Sarkar. However, in so far as the assault on other parts of the body of the deceased is concerned, the evidence of the prosecution is clear and acceptable. Co-relating the said evidence with the evidence of/PW 14 in respect of other injuries suffered by the deceased, we are of the view that the accused-Appellants should be held liable for commission of the offence under Sections 325/149 IPC. 11. In view of the foregoing discussions, we modify the conviction of the accused-Appellants under Sections 302/149 to Section 325 IPC. We also deem it appropriate to impose a sentence of rigorous imprisonment for three years on each of the accused-Appellants. The conviction of the accused-Appellants under Sections 148/342 Indian Penal Code as well as the sentence imposed under the aforesaid Sections of the Indian Penal Code are maintained. 12. We are told that the accused-Appellants are presently in jail and that they have suffered more than three years imprisonment, a fact, which is accepted by the learned Public Prosecutor and also revealed by the records. We, therefore, order that the sentence imposed by the present order be set off against the period of detention already suffered and the accused-Appellants be set at liberty forthwith. 13. The Appeal is partly allowed to the extent indicated above.