Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 783 (GAU)

Chand Mohammad v. State of Assam

2009-11-10

AMITAVA ROY, C.R.SARMA

body2009
JUDGMENT 1. The conviction of the appellant under Section 302 of the Indian Penal Code ('the Code'), recorded by the Judgment and Order dated 21.12.2005 of the Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No. 29(K) of 2004, thereby sentencing him to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 10,000 and in default to undergo Rigorous Imprisonment for another 1(one) month, is under challenge in the present appeal. By the aforementioned Judgment and Order the other 2(two) co-accused, namely, Md. Mirjahan Ali and Md. Moinul Ali stood acquitted of the charges. 2. We have heard Mr. J.M. Choudhury, senior advocate assisted by Mr. B.M. Choudhury, learned advocate for the appellant and Mr. Z. Kamar, learned Public Prosecutor for the State. 3. The prosecution case opens with the FIR dated 1.12.1999 lodged with the Officer-In-Charge of Hajo Police Station by one Md. Yusuf Ali, a resident of Agyathuri, within the territorial limits of the aforementioned Police Station in the district of Kamrup. It was alleged therein that about at 2.30 p.m. on that date while the deceased Mr. Nur Mohommad was working in a paddy field, the appellant along with the co-accused named hereinabove trespassed thereinto being armed with sharp weapons like dao, etc., and collectively attacked him due to boundary dispute of land, thus, causing grievous injury in his neck and hands. Thereafter, the injured was taken to the Gauhati Medical College Hospital for treatment, where he succumbed to the injuries sustained. The FIR was registered as Hajo PS Case No. 201 of 1999 under Section 302/34 of the Code and on completion of the investigation charge sheet was laid against all the named accused persons under the aforementioned provision of the Code. 4. The case being triable exclusively by the Court of Sessions, the same was committed thereto and was eventually transferred to the file of Additional Sessions Judge for trial. Charge was framed against them under Section 302/34, IPC to which the accused persons pleaded "not guilty" and claimed to be tried. 5. The prosecution examined, in the trial 12 (twelve) witnesses including the Doctor who had performed the post mortem examination and also the Investigating Officer. The accused persons, however, did not examine any witness in defence. Their statements under Section 313 of the Cr.PC were recorded. 5. The prosecution examined, in the trial 12 (twelve) witnesses including the Doctor who had performed the post mortem examination and also the Investigating Officer. The accused persons, however, did not examine any witness in defence. Their statements under Section 313 of the Cr.PC were recorded. While the 2(two) co-accused of the appellant were acquitted of the charge, the learned court below after hearing the appellant on the question of sentence rendered the decision assailed in the appeal. 6. The learned senior counsel for the appellant has emphatically urged that it being apparent on the face of the record that a land dispute between the parties had existed at the time of the occurrence, which assuredly had led to the incident, the conviction and sentence of the appellant by disregarding the above vital aspect having a decisive bearing on the prosecution case, has rendered the impugned Judgment and Order unsustainable in law. Referring to the witnesses of the prosecution projected to have seen the incident, namely, PWs. 1, 2, 3 and 10, Mr. Choudhury, has submitted in his usual fairness that the involvement of the accused appellant is amply proved without prejudice to the above, however, he has argued that it being obvious from the testimony of the above witnesses that he at the relevant point of time had dealt only one blow by the dao on the neck of the deceased, he by no means could be said to have been impelled by the intention to kill and therefore, the charge under Section 302 of the Code cannot stand against him. He also sought to endorse this argument of his by drawing our attention to the relevant portion of the post mortem report, which according to him goes to show that the deceased had suffered only one cut injury on his neck. As this disclosure from the post mortem report according to Mr. Choudhury, is in corroboration of the evidence of the eye-witnesses, the conviction of the appellant under Section 302 of the Code is wholly unsustainable. This, coupled with the fact of a subsisting boundary dispute between the parties, the charge of murder ought not to have been held to have been proved, he argued. Choudhury, is in corroboration of the evidence of the eye-witnesses, the conviction of the appellant under Section 302 of the Code is wholly unsustainable. This, coupled with the fact of a subsisting boundary dispute between the parties, the charge of murder ought not to have been held to have been proved, he argued. Sri Choudhury, learned senior counsel for the petitioner has also controverted the authenticity of the evidence of PWs 1, 2, 3 and 10 and the credibility of their statements pertaining to the actual assault being made by the appellant on the deceased with the sharp cutting weapon. 7. Mr. Kamar, learned Public Prosecutor in reply has contended that following the progression of the events from the alarm raised by the deceased till the witnesses had reached the place of occurrence, it is clear that even before the eye-witnesses saw the actual assaults being made by the appellant, the deceased had meanwhile been attacked and injured. He sought to suggest therefrom that though it is not very demonstrable from the evidence of the eye-witness in clear terms that more than one blow had been struck by the appellant with the dao on the neck of the deceased, on a cumulative consideration of the developments at the place of occurrence, it can be safely concluded that more than one injury had been caused on the neck of the deceased resulting in his eventual death. To reinforce his arguments Mr. Kamar has laid emphasis on the post mortem report, which according to him establish beyond doubt that there were 2(two) cut injuries on the neck of the deceased. 8. PW1, Md. Pharsah S.K., who claimed himself to be a relation of the accused persons stated that the occurrence had taken place on a paddy field at about 2.30 p.m. on 1.12.1999. According to him at the relevant point of time, he was situated at about 150 meters away from the place of occurrence. Hearing the alarm raised by the deceased, he along with his wife Jayeda Bibi and daughter Narjina Bibi rushed to the place of occurrence and saw the appellant hack the deceased with a dao while the other two co-accused were standing nearby. The witness stated to have seen cut injuries on the little finger of the left hand and in the right palm of the deceased. The witness stated to have seen cut injuries on the little finger of the left hand and in the right palm of the deceased. He was categorical in stating about the cut injuries on the left side of the neck as well. According to him, his brothers, wife Joitun (PW-3), Siraj and another gentleman came to the place of occurrence. On seeing them, the accused persons departed from the scene. This witness stated that thereafter, with the help of Siraj and the other gentleman, the injured was taken to Hajo Health Centre and thereafter to the Gauhati Medical College Hospital, where the deceased was provided treatment, but he died in the same evening at about 5.00 p.m. PW 1, confirmed the inquest of the dead body by the Police and also proved his signature in Ext. 1(1) in the Inquest Report, i.e., Ext. 1. In cross-examination this witness clarified that at the time of the occurrence, the deceased was working in his own field of cultivation. He denied amongst others the suggestion of the defence that at the time of occurrence the appellant was working in his field and that the deceased and others had attacked him. 9. PW 2, Mustt. Jayeda Bibi, while narrating the incident stated that at about 1.30 p.m. on the same day, on hearing a commotion from the field in the backside of their house she along with her husband PW 1 and their daughter Narjina Bibi went to the place of occurrence and saw the appellant cut the deceased with a dao. She stated that when they reached the place of occurrence they found the deceased lying on the ground with cut injuries on the neck. She also confirmed the statement of PW 1 that Joytun Bibi and Siraj had been at the place of occurrence. In the cross-examination, she while reiterating her statements in the examination-in-chief, denied any land dispute of the deceased with the appellant. 10. PW 3, Mustt. Joytun Bibi, the wife of the deceased recited the facts exactly in the similar lines as narrated by PW 2. This witness was specific in stating that she saw the accused appellant inflicting dao blows on the neck of the deceased and also on his right and left hands. 10. PW 3, Mustt. Joytun Bibi, the wife of the deceased recited the facts exactly in the similar lines as narrated by PW 2. This witness was specific in stating that she saw the accused appellant inflicting dao blows on the neck of the deceased and also on his right and left hands. While repeating the testimony of the other witnesses with regard to the developments thereafter, she however, claimed the land of the place of occurrence to be of their family. In cross-examination, however, she admitted of some land dispute with the accused appellant. 11. The evidence of PW-10, Md. Siraj Ali does not call for any detailed narration, as the same is identical with the above witnesses. While confirming that the other 2(two) accused persons did not assault the deceased, this witness stated that he had seen the accused appellant giving dao blow on the finger of the left hand of the deceased and on the left side of the neck of the deceased. He also stated to have seen the injuries on the neck and hands of the deceased after the assault. 12. The evidence of other witnesses is not essential to be dealt with as the same has no direct bearing on the incident and involves testimony of those who are seizure witnesses and of the inquest. 13. The evidence of PW 12, i.e., the Doctor who had, performed the post mortem examination is, however, of vital significance. This witness stated to have located the following injuries: 1. Stitched wound closed by 6 black side stitches measuring 6 cm x 4 cms x 3 cm deep present obliquely on left side of necks at 3 cm above medial end...illegible...left clavicle and 5 cm left to mid line left side stirnocledo mastoid muscles was cut partly and left side carotid vessels were cut partially. 2. Cut wound 5 cm x 4 cm x 3 cm deep present obliquely on left side of neck inner end of the cut being present at 1 cm below and right to inner end of cut wound No. (1) both cut (1) and (2) meets together. 3. Cut wound 4 cms x 1.5 cm x 0.5 cm deep, present obliquely on back of the right hand at 4 cms proximal to roots of 2nd and 3rd fingers of right hand, (defence cut) 4. 3. Cut wound 4 cms x 1.5 cm x 0.5 cm deep, present obliquely on back of the right hand at 4 cms proximal to roots of 2nd and 3rd fingers of right hand, (defence cut) 4. Cut wound 2.5 cm x 5 cm x 0.5 cm deep present obliquely on back and inner side of middle phalanx often finger of left hand under lying bone was cut partly (defence cut) blood stains adherent to cut margins of wounds resist washing. All other organs were found healthy and pale. Both lungs were healthy and pale. Heart was healthy and empty. Stomach was healthy and pale and contains 300 gr. Partly digested rice, dal, vegetable and no suspicious smell found. Brain was healthy and pale. This witness opined that the death of the deceased was due to shock and haemorrhage resulting from cut injuries on the neck caused ante mortem and by using sharp weapon being homicidal in nature. This witness proved the post mortem report prepared by him as Ext. 4, which discloses the following injuries: 1. Stitched wound closed by 6 black 8th stitches 6 cm x 4 cms x 3 cm deep present obliquely on left side of necks at 3 cm above medial end of...illegible...(left clavicle) and 5 cm left to mid line left side stirnocledo mastoid muscles cut partly and left side carotid vessels cut partially. 2. Cut wound 5 cm x 4 cm x 3 cm deep present obliquely on left side of neck inner end of the cut being at 1 cm below and right to inner end of cut wound No. (1) both cut (1) and (2) meet together. 3. Cut wound 4 cms x 1.5 cm x 0.5 cm deep, (bonedeep) present obliquely on back (dorsum) of the right hand at 4 cms proximal to roots of 2nd and 3rd finger of right hand (defence cut). 4. Cut wound 2.5 cm x 5 cm x 0.5 cm deep present obliquely on back and inner side of middle phalanx of 4th finger of left hand under lying bone is cut partly (defence cut) blood stains adherent to cut margins resist washing. 14. 4. Cut wound 2.5 cm x 5 cm x 0.5 cm deep present obliquely on back and inner side of middle phalanx of 4th finger of left hand under lying bone is cut partly (defence cut) blood stains adherent to cut margins resist washing. 14. On an analysis of the evidence of the witnesses of PWs 1, 2, 3 and 10, there is no manner of doubt of the involvement of the accused appellant in the commission of the offence of assault on the deceased by a sharp cutting weapon resulting in his death from the injuries sustained thereby. While the learned senior counsel for the appellant has strenuously endeavoured to impress upon us of that in the background of a land dispute between the parties, one single blow/assault on the neck of the deceased even by a sharp cutting weapon by the appellant does not indubitably suggests the intention of the assailant to do away with the victim and, his conviction under Section 302 of the IPC cannot be sustained in law, the learned Public Prosecutor, has with equal emphasis urged that a cumulative reading of the oral evidence on the incident, the testimony of the Doctor and the Post Mortem report demonstrably justify the charge of murder. Reading between the lines of the extracted portions of the testimony of PW 12 and the post mortem report Ext. 4, it appears to us very conspicuously that the 2(two) cut injuries referred to therein are independent and distinct from each other but ultimately merging in themselves. This is conspicuous from the portion of the line in both the extracts as follows: ...both cut (1) and (2) meets together. There is, therefore, no scope whatsoever to conclude that the injured had suffered only 1(one) cut injury on his neck following the grievous assaults inflicted on him by the accused appellant. Not only the evidence of the eye-witnesses referred to hereinabove, per se, do not rule out the infliction of more than one assault on the neck of the deceased by the accused appellant, the very fact that he (deceased) had suffered cut injuries also on his both hands appear to us to be redolent of the fact that more than one blow was dealt by the accused appellant on him in course of the assaults. 15. 15. The evidence of the eye-witnesses and, that of the Doctor and the post mortem report, therefore, conclusively establish that the accused appellant, with a dao in his hand had hacked the deceased more than once and succeeded atleast twice to meet the target, i.e., the neck, ensuring his death. The plea of absence of intention of the accused appellant to cause the death of the deceased, or to cause any injury sufficient in the normal course of things to cause death, thus, cannot be sustained. In the above view of the matter we do not find any merit in the appeal and it is accordingly dismissed. Appeal dismissed.