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2015 DIGILAW 1505 (GAU)

Asmot Ali (Md) v. State of Assam

2015-12-09

CR.SARMA, INDIRA SHAH

body2015
JUDGMENT : CR. Sarma, J. Heard Mr. A Alam, learned counsel for the appellant and Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order, dated 11.07.2013, passed by the learned Sessions Judge, Dhubri in Sessions Case No.37/2007. By the impugned judgment and order, the learned Sessions Judge, convicted the appellant under Sections 147/148/149/302 IPC and sentenced him to suffer simple imprisonment for 15 days and pay fine of Rs. 500/- for his conviction under Sections 147 read with Section 149 IPC and pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for 1(one) month for conviction under Section 148 read with Section 149 IPC. The learned Sessions Judge also sentenced the appellant to suffer imprisonment for life and pay fine of Rs. 5000/-, in default, suffer simple imprisonment for another period of 3(three) months for his conviction under Section 302 IPC. 3. The Sessions Judge exercising power under Section 357 A Cr.P.C., directed payment of adequate compensation to the members of the family of the victim. 4. Aggrieved by the said judgment and order, the appellant has come up with his appeal. The dispute arose regarding possession of land and harvesting of paddy grown therein. According to prosecution, on 20.10.2005, at about 11 A.M., when the informant and others were harvesting paddy the appellant along with other accused persons, being armed with dao, rod, axe, lathi etc., appeared there and resisted the informant and others from harvesting the paddy. Consequently a mutual fight took place between both the parties. As alleged by the informant, appellant, Md. Asmot Ali inflicted a blow on the head of Mr. Foyezuddin Ali (hereinafter called the deceased) with a bakey dao (a sharp curved cutting weapon) as a result of which the deceased succumbed to the injuries. In the said incident, several other persons belonging to both the parties sustained injuries and two members of the accused party also, namely, Md. Yusuf Ali and Md. Bahadur Ali, who accompanied the appellant to the place of occurrence succumbed to the injuries sustained in the said incident. The deceased was taken to the hospital and he was declared dead. 5. PW-1, Md. Gohir Ali, who was harvesting the said paddy, lodged the FIR (Exhibit-2) with the Officer-in-charge, Agomani Police Outpost. Yusuf Ali and Md. Bahadur Ali, who accompanied the appellant to the place of occurrence succumbed to the injuries sustained in the said incident. The deceased was taken to the hospital and he was declared dead. 5. PW-1, Md. Gohir Ali, who was harvesting the said paddy, lodged the FIR (Exhibit-2) with the Officer-in-charge, Agomani Police Outpost. On receipt of the said FIR, police registered a case under Sections 147/148/149/447/326 and 302 IPC, against the appellant and 10 other accused persons. 6. During investigation, Police visited the place of occurrence, examined the witnesses and sent the dead body of the deceased for post mortem examination. At the close of the investigation, police submitted charge sheet against all the 11 accused persons for the offences under Sections 147/148/149/447/326/302 IPC. 7. The offence under Section 302 IPC being exclusively triable by the Court of Sessions, the learned CJM, Dhubri committed the case to the Court of Sessions, Dhubri. The learned Sessions Judge framed charges against the accused persons under Sections 147/149 IPC, 148/149 IPC and 302/149 IPC. The charges were read over and explained to the accused persons, to which they pleaded not guilty. They claimed to be tried. 8. In order to prove its case, prosecution examined as many as 10 witnesses including the Medical Officer (PW-10), who performed the autopsy on the dead body of the deceased and the Investigating Officers (PW-8 and PW-9) respectively. At the close of the evidence of the prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations brought against them and declined to adduce defence evidence. 9. Considering the evidence on record, the learned Sessions Judge, came to the findings that all the accused persons, including the appellant, by forming an unlawful assembly assaulted the informant and other members of his party and that the appellant caused the death of the deceased by inflicting dao blow on his head. Accordingly the learned Sessions Judge, while convicting and sentencing the other accused persons for the offences under Sections 147/148/149 IPC, convicted and sentenced the appellant as indicated above. Hence this appeal. 10. Mr. Accordingly the learned Sessions Judge, while convicting and sentencing the other accused persons for the offences under Sections 147/148/149 IPC, convicted and sentenced the appellant as indicated above. Hence this appeal. 10. Mr. A Alam, learned counsel appearing for the appellant, taking this Court through the evidence on record, has submitted that the informant and other PWs had trespassed into the land, in possession, of the appellant and that they made attempt to harvest the paddy in the land, in possession, of the appellant and as such the appellant and other accused persons, in order to protect their property, had resisted the informant and his persons, as a result of which a mutual fight had taken place and that both the parties sustained fatal injuries. It is submitted that the appellant, who has been convicted under Section 302 IPC, had no intention or pre-meditation to cause the death of the deceased, inasmuch as, the deceased was given only one blow on his head, that too with a blunt weapon. It is also submitted that, though the witnesses stated that the appellant was armed with a sharp cutting weapon, the medical evidence belies the prosecution version that the appellant had used any sharp cutting weapon in causing the injury on the person of the deceased. 11. The learned counsel for the appellant has submitted that the prosecution has failed to establish that the appellant had committed an offence under Section 302 IPC and as such the conviction and sentence, recorded under Section 302 IPC, cannot be maintained. 12. Supporting the impugned judgment and order, Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam has submitted that there is sufficient evidence, on record, to show that the appellant, who was armed with a sharp cutting weapon, had inflicted the fatal blow on the head, which was a vital part of the body and, thus, intentionally caused the death of the deceased and as such the learned Sessions Judge committed no error or illegality in convicting and sentencing the appellant under Section 302 IPC. Therefore, the learned Additional Public Prosecutor has submitted that the impugned judgment and order needs no interference. 13. Having heard the learned counsel appearing for both the parties, we have carefully perused the evidence, on record. Therefore, the learned Additional Public Prosecutor has submitted that the impugned judgment and order needs no interference. 13. Having heard the learned counsel appearing for both the parties, we have carefully perused the evidence, on record. Undisputedly, on the date of occurrence, the informant and other members of his party were harvesting the paddy and at that time, the appellant, along with other accused persons, arrived there and resisted the informant and others from harvesting the paddy. From the evidence on record, it also appears that the disputed land was, all along, in the possession of the appellant side. There is also no dispute that a mutual fight had taken place between both the parties due to the resistance given by the appellant side and in the said incident two members, belonging to the appellant side also succumbed to the injuries, sustained during the said incident. The informant deposing as PW-1, has clearly stated that the appellant i.e. Md. Ashmot Ali had hit the deceased on his head and the deceased succumbed to the injuries. He also stated that two members belonging to the accused side i.e. Md. Yusuf Ali and Md. Bahadur Ali died in connection with the said incident. Though this witness was cross-examined on behalf of the defence, his evidence that the appellant had inflicted the fatal blow on the head of the deceased remained un-demolished. 14. Supporting the evidence of PW-1, Md. Khalimuddin (PW-2) also stated that the appellant had given a blow on the head of the deceased with a bakey dao and that Md. Yusuf Ali and Md. Bahadur Ali also succumbed to the injuries sustained in the said incident. Despite cross-examination, the said evidence given by PW-2 could not be discredited. 15. PW-3, Md. Shahidur Rahman arrived in the place of occurrence after the incident. Hence he had no knowledge about the role played by the accused person. 16. PW-4, Sri Santi Ranjan Chakraborty, supporting the evidence of PW-1 and PW-2 has stated that the appellant had given a blow on the head of the deceased with a dao and that the deceased had fallen on the ground. He further stated that the deceased died due to the said injury, sustained by him. However, at the last part of the cross-examination, this witness stated that he did not know as to who had assaulted whom and thus, he contracted his earlier statement. He further stated that the deceased died due to the said injury, sustained by him. However, at the last part of the cross-examination, this witness stated that he did not know as to who had assaulted whom and thus, he contracted his earlier statement. Therefore, the evidence of PW-4 that he had seen the appellant giving dao blow, on the head of the deceased, is not believable. 17. PW-5, Md Anowar Ali, also did not see as to who had assaulted whom. PW-6 and 7 did not support the prosecution version and they were declared hostile. Though they were cross-examined, on the side of the prosecution, nothing incriminating could be gathered from them. 18. PW-8, Chandra Kanta Barua is the Investigating Officer, who completed the investigation and handed over the case diary to the officer-in-charge of the Police Station. 19. PW-9, Bijit Dadhara is another Investigating Officer, who submitted the charge-sheet. 20.PW-10, Dr. Saumitra Paul, performed the autopsy in respect of the dead body of the deceased. The said medical officer deposed that, during the examination of the dead body, he found the following injuries: "1. Haematoma over the left maxillary area 3cm x 5cm. 2. Lacerated injury over left temporal area 3cm x 5cm 3. Fracture of the left temporal bone. 4. Sub-dural Haemotoma is seen at the site of injury 3cm x 5cm." PW-10 opined that the death of the deceased was due to shock and hemorrhage as a result of ante-mortem injury. He exhibited the post mortem report as exhibit 7 and his signature therein as exhibit 7(1). He also exhibited the signature of the Joint Director, Health Services, Dhubri as exhibit 7(2). In his cross-examination, the said medical officer, clearly stated that it was not possible to cause the said injuries by means of a sharp cutting weapon like the bakey da or dao. According to the medical officer, the injuries were caused by a single blow. From the said evidence, given by the medical officer, it transpires that the injuries sustained by the deceased were caused by a blunt object and that the blow was given only once. According to the medical officer, the injuries were caused by a single blow. From the said evidence, given by the medical officer, it transpires that the injuries sustained by the deceased were caused by a blunt object and that the blow was given only once. Both the PW-1 and PW-2, who were the eye witnesses to the occurrence, clearly stated that the appellant was armed with a bakey dao i.e., a sharp cutting weapon and that he had given a blow on the head of the deceased by means of the said weapon. 21. Carefully scrutinising the evidence, given by PW-1, PW-2 and the medical officer, we have no difficulty in understanding that the appellant, though armed with sharp cutting weapon i.e., the bakey dao, had used the blunt side of the weapon in giving the blow. The said two eye witnesses did not state that the appellant had given repeated blows. Therefore, it is clearly found that the appellant had given only one blow, that too, with the blunt side of the dao, carried by him. The fact that the appellant had given only one blow with the blunt side of the weapon, indicates that he had no intention to cause death of the deceased. If he had any such intention, he could have, easily, inflicted several cut blows on the head of the deceased with the sharp edge of the weapon carried by him. That apart, from the facts and circumstances of the present case, it appears that the appellant and other accused persons had visited the place of occurrence with an intention to resist the informant and others from harvesting the paddy from the land in their possession. Hence it appears that they went there to protect their property and stop the informant from removing the paddy therefrom. The act of harvesting the paddy by the informant from the land, in possession, of the appellant side, coupled with the mutual fight, probably, provoked the appellant to inflict the blow. Hence, it appears that the fatal blow was given due to sudden quarrel that took place between both the parties. As revealed from the evidence, on record, it is found that members belonging to both the parties sustained injuries and two members belonging to the appellant's side also succumbed to the injuries sustained in the said incident. 22. Hence, it appears that the fatal blow was given due to sudden quarrel that took place between both the parties. As revealed from the evidence, on record, it is found that members belonging to both the parties sustained injuries and two members belonging to the appellant's side also succumbed to the injuries sustained in the said incident. 22. In the case of Bagdi Ram v. State of Madhya Pradesh, reported in AIR 2004 SC 387 , the appellant caused only one injury to the deceased by picking up the gainti (pick-axe) and he did not repeat the blow on the deceased. The conviction recorded under Section 302 IPC by the trial court was modified to one under Section 304 Pt. I. IPC by the High Court. On appeal, the Supreme Court, while upholding the judgment and order passed by the High Court, modified the sentence requiring the appellant to suffer RI for 3(three) years under Section 304 Pt. I IPC. 23. In the case of Shivappa Buddappa Kolkar @ Buddappagol v. State of Karnataka and others reported in AIR 204 SC 5047, the appellant gave a solitary blow with an axe in the back of the head of deceased resulting into his death. Considering the fact that only a singly blow was inflicted without any pre-meditation or pre-arranged plan, the conviction under Section 302 IPC was modified to one under Section 304 Pt. II. 24. In the light of the above, we are of the considered opinion that as the appellant had given only a single blow on the head of the deceased, that too, with the blunt side of the dao, in a sudden fight, it cannot be held that there was any pre-meditation or any plan to cause the death of the deceased. Therefore, considering the entire facts and circumstances of the case and the nature of offence committed by the appellant as well as the number of injury inflicted, we are inclined to hold that the offence committed by the appellant would come under Exception No.4 and as such it cannot be held that he committed the offence under Section 302 IPC. The offence committed by the appellant was culpable homicide not amounting to murder. Therefore, the offence committed by the appellant will fall under Section 304 IPC, instead of 302 IPC. The offence committed by the appellant was culpable homicide not amounting to murder. Therefore, the offence committed by the appellant will fall under Section 304 IPC, instead of 302 IPC. As the appellant had inflicted the blow by the blunt side of the dao, which was a heavy object, on the vital part of the body i.e., the head, there is no difficulty in understanding that he had the knowledge that the same was likely to cause the death of the deceased. Therefore, the offence committed by the appellant would come under Section 304 Pt. II. IPC. Hence, he is liable under Section 304 Pt. II instead of Section 302 IPC. 25. In view of the above, we are of the considered opinion that the conviction and sentence, recorded under Section 302 IPC, cannot be maintained. Accordingly, the conviction and sentence awarded by the learned trial judge for the offence under Section 302 IPC is modified to one under Section 304 Pt. II IPC. Consequently, the sentence of imprisonment for life, awarded by the learned trial judge, is set aside and the appellant is sentenced to suffer rigorous imprisonment for 7(seven) years. 26. We make no interference in respect of the sentence relating to fine and the direction regarding payment of compensation. We also make no interference in respect of conviction and sentence under Sections 147/149 and 148/149 IPC, awarded by the learned trial judge. 27. It is further made clear that the period of detention already undergone by the appellant shall be treated as set off under Section 428 Cr.P.C. 28. With the above direction, this appeal is partly allowed. Return the LCR.