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2009 DIGILAW 899 (GAU)

Hasmat Ali v. State of Assam

2009-12-15

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. C.R. De, learned Counsel for the Appellant and also heard Mr. B.B. Gogoi, learned Additional P.P., Assam. 2. This appeal has been preferred against the judgment and order dated 25.6.02 passed by the learned Additional Session Judge (Ad hoc), Barpeta in Sessions Case No. 103 of 2000, convicting the Appellant under Section 304, Part-f IPC and sentencing him to undergo R.I. for seven years and to pay fine of Rs. 500/-, in default, to pay fine, to suffer further R.I. for 15 days. 3. The prosecution case in brief, is that on 30.10.1997 at about 7 a.m. when Ibrahim Ali, deceased, was going to the house of his mother's sister, the accused Appellant intercepted him near the L.P. School No. 200 at Hudukhata Naukhali and inflicted piercing injury with weapon like sharp knife and left him injured. Md. Samsul Ali, the maternal uncle of the deceased Ibrahim Ali, lodged FIR with the Patacharkuchi P.S. and registered a crime being Patacharkuchi P.S. Case No. 226 of 1997 under Sections 341/326 IPC Investigation started and in the meantime, the injured Ibrahim Ali succumbed to his injuries. The prosecution made a prayer for adding Section 302 IPC, which was allowed by the learned SDJM, Bajali. On completion of the investigation, Police submitted Charge Sheet against accused/appellant Hasmat Ali under Sections 341/302 IPC. The case was committed to the Court of learned Sessions Judge whereafter charges were framed against the accused Appellant under Sections 341/302 to IPC. On charges being explained, the accused-appellant pleaded not guilty and claimed to stand trial. 4. The prosecution examined in all, 10 witnesses including the Investigating Officer and the Doctor. The Defence also adduced 3 witnesses including the accused himself. On consideration and appreciation of the evidence and materials on record, the learned Trial Court after hearing the learned Counsel for the parties, passed the impugned Judgment & Order awarding conviction and sentence as stated earlier. 5. PW1 Samsul Ali is the informant and maternal uncle of the deceased. He deposed that Ibrahim Ali went to the house of his maternal uncle and on his way at Gergria Primary School, he was dealt with piercing blow with a sword. Ibrahim Ali ran to him and narrated the incident. 5. PW1 Samsul Ali is the informant and maternal uncle of the deceased. He deposed that Ibrahim Ali went to the house of his maternal uncle and on his way at Gergria Primary School, he was dealt with piercing blow with a sword. Ibrahim Ali ran to him and narrated the incident. He has not seen the act of giving blow by the Appellant on the person of Ibrahim Ali inflicting serious injury, nor did he see, the Appellant holding any weapon in his hand. What this P W 3 saw was that Ibrahim Ali fell on the ground by his side at a distance of about 200 ft. and Ibrahim was bleeding from the chest and he was rushed to the Hospital where he died at 3 P.M. on the same date. In cross examination he stated that he did not see any other person at the chawk. It was suggested to him that seeing Hasmat Ali he alongwith Ibrahim went to attack Hasmat Ali and he hurled an iron rod at Hasmat Ali but instead, it hit Ibrahim Ali and caused the fatal injury which he denied. He also denied the suggestion that he stated before the Investigating Officer to have seen Hasmat Ali and Ibrahim Ali engaged in altercation. 6. The evidence on PW 2 Md. Jamu Ali is not significant inasmuch as he was not present at the place of occurrence and he could see the injury only when the deceased was taken to hospital. PW 3 Mazer Ali deposed that he was ploughing nearby the place of occurrence, but he did not see the occurrence. He simply heard altercation from a distance of about 4/5 metres away. He did not see in his own eyes the act of giving blow by a sharp weapon by the accused Appellant. PW 4 Md. Abdul Wazid, a teacher by profession was conducting tutorial class inside the L.P. School and he came out hearing 'hullah' outside. This witness also did not see the occurrence in his own eyes and therefore, no significance can be given to the evidence of this witness. 7. P W 10 is the Investigating Officer of the case. He visited the place of occurrence and drew up a sketch map of the place of occurrence and examined some witnesses on 30.10.1997 and 6.11.1997. 7. P W 10 is the Investigating Officer of the case. He visited the place of occurrence and drew up a sketch map of the place of occurrence and examined some witnesses on 30.10.1997 and 6.11.1997. It appears that he visited the place of occurrence on the very date of occurrence i.e. on 30.10.1997. No material/article was seized by him from the place of occurrence. In cross-examination the Investigating Officer, PW10, stated that he did not find any incriminating material, not to speak of the weapon of assault and blood stained clothes of the deceased. To put the words of the Investigating Officer from his deposition: ...whether blood starinswere available on the PO, has not been recorded by me. No cloth was seized by me... The Search and Seizure List reads as follows: Ref PKC P.S. Case No. 226/97 under Sections 341/326 IPC. I.S.I., Dhaneswar Kalita O/C Patacharkuchi P.S. on 6.11.1997 at about 3 PM at Gergeria do hereby search in and around the P.O. and the houses and premises of accused Md. Hasmat Ali, S/O. Amzad Ali of village Gergeria P.S. Patacharkuchi in comn. with above noted case and found nothing important incriminating to be seized. Sd/- Dhaneswar Kalita O/C. PKC P.S. 06.11.97 8. Dr. Sorojini Majumdar was examined as PW 7. She deposed that she was on duty on 30.10.1997 at Nalbari Civil Hospital as S.D.M. & H.O. and conducted the postmortem examination of deceased Ibrahim Ali and she found the following injuries: An well built male dead-body, mouth opened. Eyes half opened. External Appearance: (i) Lacerated injury in the left upper limb in upper one-third, measuring 6 cm × 2cm × 2cm. Stitches removed bleeding from the wound present. (ii) Penetrating injury in the left side of the chest in between 5th and 6th ribs, measuring 3.5 cm × 2.5 cm in the left side of the chest. Stitches removed and injury was found bleeding. Thorax: Injury present in the left side of pleurae at the medial side. Pleural cavity in leftside full of blood. Left Lung: Lacerated injury present, measuring 3cm × 2cm in the lower lobe of lung medial side. Pericardium: Injury in the left side of the pericardium measuring 3cm × 2.5cm. Heart: Injury in the left venticle in the upper margin present, measuring 3cm × 2.5cm. Pleural cavity in leftside full of blood. Left Lung: Lacerated injury present, measuring 3cm × 2cm in the lower lobe of lung medial side. Pericardium: Injury in the left side of the pericardium measuring 3cm × 2.5cm. Heart: Injury in the left venticle in the upper margin present, measuring 3cm × 2.5cm. More details of injury: As per the column No. (i) wounds were stained with blood which could be washed with water. The wounds were ante-mortem in nature. Opinion: In the opinion of the Doctor the death was due to shock and exsanguination (haemorrhage) due to injury on vital organ like lung and heart. In cross-examination, she stated that penetrating injuries was caused by sharp weapon. 9. Accordingly, the postmortem report read with the evidence of Medical Officer PW 7 confirms that the deceased received injury by a sharp weapon. The prosecution witnesses also stated that the deceased received the injury by sword/dagger, which comes to the fold of sharp weapon and due to such injury the deceased died in the hospital. 10. The real question is whether the dagger/sword injury inflicted on the aforesaid caused the death. There is no eye witness to the fact of giving blow with a sharp weapon to the deceased. However, PW 1 has stated that the deceased after being injured came to him and told that the Appellant caused the injury to him. It, inter alia, raises a question whether the evidence of PW 1 is enough to come to a conclusion that the Appellant caused the injury and he would be liable to be convicted. It would depend on the circumstantial evidence. The investigating officer although visited the place of occurrence did not make any attempt to seize the crime weapon and the other articles particularly the blood stained clothes of the deceased. Had the weapon of crime was seized, it could have been sent for chemical examination. There is nothing on record to suggest that there was an enmity between the deceased and the Appellant. The defence has taken the plea that it was the P W 1, the maternal uncle of the deceased, who finding the deceased alone, hurled iron rod and caused death. The evidence and materials on record are not sufficient to come to a conclusion/finding that it was the Appellant who hit the deceased by a sharp weapon causing death to him. The evidence and materials on record are not sufficient to come to a conclusion/finding that it was the Appellant who hit the deceased by a sharp weapon causing death to him. The circumstantial evidence is that excepting these three persons, namely PW 1, the accused Appellant and the deceased, no other persons were present at the place of occurrence. There was of course other people at some distance from the place of occurrence who heard the 'hullah'. There is no corroborative evidence of PW 1 that the injured Ibrahim Ali after being hurt, rushed to him and told him how he was hit by the accused. 11. It is, therefore, found that the circumstantial evidence is also not sufficient to come to a conclusion that the accused Appellant is responsible for the death of Ibrahim Ali. 12. It is found that the prosecution could not remove the aforesaid doubt for which it may be stated that the prosecution has been unsuccessful in proving its case beyond all reasonable doubt. 13. Because of the discussion made as above on appreciation of evidence and materials on record, I am not in a position to agree with the findings and conclusion arrived at by the learned Trial Court and I would not hesitate to set aside the judgment & order dated 25.6.2002 passed by the learned Additional Sessions Judge in sessions case No. 103 of 2000. Accordingly, the same is set aside. The conviction and sentence shall stand quashed. The accused Appellant is acquitted and set at liberty forthwith. The bail bond shall stand discharged. 14. LCR be returned.