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Tripura High Court · body

2015 DIGILAW 218 (TRI)

Abdul Mustafa v. State of Tripura

2015-04-28

S.C.DAS

body2015
JUDGMENT 1. This criminal appeal under Section 374 of CrPC is directed against judgment and order of conviction and sentence dated 12.04.2011 passed by learned Addl. Sessions Judge, Dharmanagar, North Tripura in connection with Sessions Trial Case No. S.T.11(NT/D)2010, whereunder the learned Addl. Sessions Judge found accused appellant Abdul Mustafa guilty of committing offence punishable under Section 304 Part-II of IPC and sentenced him to suffer rigorous imprisonment for eight years. 2. Heard learned counsel, Mr. A. Bhowmik for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent. 3. Prosecution case, in short, is that the informant Faruk Uddin(PW1), S/O Abdul Mannan and the accused-appellant Abdul Mustafa have been residing in the same house compound at village- Indurail under P.S. Panisagar, North Tripura District and the accused, Abdul Mustafa happens to be the own paternal uncle(younger brother of father) of informant, Faruk Uddin. On 19.08.2007, a Sunday at about 6.00 AM accused Abdul Mustafa took the bicycle of informant Faruk Uddin and when Faruk Uddin asked for the bicycle to go to his arum field, the accused Abdul Mustafa picked up a quarrel with him and threw the bicycle in the lunga. The informant picked up the bicycle from the lunga and left for his arum field. On that day at about 9.00 AM Mariam Bibi, mother of the informant Faruk Uddin called Abdul Jabbar(PW2) to their house and requested him to have a word with accused Abdul Mustafa to provide the hand-cart of the accused for carrying arum from her field and when Abdul Jabbar requested accused Abdul Mustafa to provide his hand-cart, at that time on that issue a quarrel picked up between Mariam Bibi and accused Abdul Mustafa and in the midst of the quarrel, all of a sudden, accused Abdul Mustafa picked up a spade from his verandah and struck a blow on the head of Mariam Bibi in her courtyard and Mariam Bibi received severe bleeding injury and fell on the ground. Abdul Jabbar tried to resist accused Abdul Mustafa from assaulting Mariam Bibi but failed and he raised cry and many people from the neighbourhood came. A neighbouring boy informed Faruk Uddin in his arum filed about his mother and he rushed to the house and thereafter along with others took Mariam Bibi to Panisagar Primary Health Centre(PHC) where the doctor declared her dead. A neighbouring boy informed Faruk Uddin in his arum filed about his mother and he rushed to the house and thereafter along with others took Mariam Bibi to Panisagar Primary Health Centre(PHC) where the doctor declared her dead. SI Kamalendu Bhowmik(PW16) arrived there and Faruk Uddin narrated the occurrence to SI Kamalendu Bhowmik which was reduced into writing by PW16 and accordingly Panisagar P.S. Case No.46 of 2007 under Section 302 of IPC was registered and investigation was taken up. SI Kamalendu Bhowmik prepared inquest report over the dead body and gave requisition for conducting postmortem examination over the dead body and accordingly PW13 Dr. Dipak Ch. Haldar conducted postmortem examination and submitted report that Mariom Bibi died a homicidal death due to hemorrhagic shock and neurogenic shock which resulted from a sharp and deep cut injury of the scalp caused by sharp and heavy object and the wound was ante mortem in nature. In course of investigation, I.O. raided the house of the accused and found him absconding and I.O. also seized the weapon of offence, i.e. the spade which was used for assaulting Mariam Bibi and recorded statement of material witnesses and after completion of investigation submitted charge sheet against accused Abdul Mustafa showing him as absconder. Cognizance was taken on the basis of the police report and after observing the formalities and surrender of accused before the Court the case was committed to the Court of learned Addl. Sessions Judge for trial. In course of trial, learned Addl. Sessions Judge on 04.06.2010 framed charge against accused Abdul Mustafa for commission of offence punishable under Section 302 of IPC to which he pleaded not guilty and claimed to be tried. 4. Prosecution examined 16(sixteen) witnesses to prove the charge. Out of them PW2 Abdul Jabbar, PW3 Ratna Begum and PW4 Ainura Khatun are the direct eyewitnesses of the occurrence. PW1 Faruk Uddin, son of the deceased, PW6 Rajak Uddin, son-inlaw of the deceased and PW7 Abdul Samed, PW10 Nazrul Islam, both neighbours of the deceased, rushed to the spot hearing alarm and found Mariam Bibi lying in the courtyard with severe bleeding injury on head and they came to know from the eyewitnesses that the accused assaulted Mariam Bibi by a spade causing the injury. PW5 Kutubi Begum is the wife of the accused and PW8 Firaja Begum is also a neighbour of the accused and the victim and both of them were declared hostile by the prosecution and were crossexamined by the prosecution as well as the defence. PW9 Dashu Miah, PW11 Abdul Hamid and PW12 Abdul Kadir were all tendered by the prosecution and though cross-examined by the defence there is nothing material in their evidence. PW13 Dr. Dipak Ch. Haldar is the medical officer who conducted postmortem examination over the dead body, PW14 Nizam Uddin is the witness to the seizure of weapon of offence, i.e. the spade, PW15 Dr. Subhankar Nath is the Government Scientific expert who examined the bloodstains seized during investigation and PW16 is the IO of the case. 5. Prosecution witnesses were cross-examined on behalf of the accused. After closure of the prosecution evidence the accused was examined under Section 313 of CrPC and thereafter, in his turn, the accused Abdul Mustafa examined himself as DW1 and also examined three more witnesses, namely DW2 Sulaman Uddin, brother-in-law of the accused, DW3 Taparunessa mother of the accused and DW4 Ayesha Bibi, sister of the accused. Defence case is that extremists demanded Rs.1,00,000/- to Mariam Bibi who was economically very sound. Mariam Bibi did not make the payment of that amount demanded by the extremists. On the date of incident Mariam Bibi called Abdul Jabbar(PW2) to negotiate with the extremists. Since Mariam Bibi did not make the payment of Rs. 1,00,000/- to the extremists as per their demand, the extremists assaulted Mariam Bibi and killed her. It is the further case of the defence that the accused was not at home at the time of occurrence and that he was at Dharmanagar with his hand-cart. Thereafter also he was away from his house for his livelihood. 6. Learned Addl. Sessions Judge by impugned judgment dated 12.04.2011 found the accused guilty of committing the offence of culpable homicide not amounting to murder for killing Mariam Bibi and sentenced him to suffer R.I. for eight years under Section 304 Part II of IPC. 7. Aggrieved, the convict Abdul Mustafa filed the present appeal. 8. 6. Learned Addl. Sessions Judge by impugned judgment dated 12.04.2011 found the accused guilty of committing the offence of culpable homicide not amounting to murder for killing Mariam Bibi and sentenced him to suffer R.I. for eight years under Section 304 Part II of IPC. 7. Aggrieved, the convict Abdul Mustafa filed the present appeal. 8. It is an undisputed fact that accused Abdul Mustafa and Abdul Mannan, the husband of victim Mariam Bibi and father of informant, Faruk Uddin were full blood brothers and Abdul Mannan, the elder brother of accused, had been residing at Saudi Arabia for about five years. Mariam Bibi with her son Faruk Uddin(PW1) and the accused Abdul Mustafa with his family were residing in the same house compound at village Indurail under P.S. Panisagar. It is also not denied that on 19.08.2007 in the morning the accused had a quarrel with the informant Faruk Uddin on the issue of a bicycle belonged to Faruk Uddin. It is also not disputed that Mariam Bibi was assaulted on her head causing a severe injury by a sharp heavy weapon in her courtyard itself and when she was taken to Panisagar P.H.C. she was declared dead. The incident occurred at about 9.00/10.00 AM on 19.08.2007. 9. Learned counsel, Mr. Bhowmik appearing for the accused-appellant has submitted that learned Addl. Sessions Judge put implicit reliance on the statement of PWs 2, 3 and 4 but did not consider the evidence of DWs in the same standard. According to Mr. Bhowmik the evidence of DWs also required to be considered in equal standard as per law and the learned Addl. Sessions Judge arrived at a wrong finding since he has ignored the evidence of DWs. He has also submitted that PWs 2, 3 and 4 are interested witnesses and therefore their evidence cannot be relied as a whole and the evidence of PWs 5 and 8 who were declared hostile by the prosecution should not have been ignored. 10. Learned Addl. P.P., Mr. Debnath, on the other hand has submitted that the accused and the deceased are close relatives and residing in the same house premises in separate mess. PWs 2, 3 and 4 are close neighbours of both the accused and the deceased. 10. Learned Addl. P.P., Mr. Debnath, on the other hand has submitted that the accused and the deceased are close relatives and residing in the same house premises in separate mess. PWs 2, 3 and 4 are close neighbours of both the accused and the deceased. They made a consistent and categorical statement about the occurrence that they have witnessed the assault and their evidence has not been shaken or controverted in any manner to have a second thought for a moment. The defence case that the extremists killed the deceased does not inspire any confidence since even the DWs did not say that they found any extremist or that they have seen the extremists assaulting the victim. Other prosecution witnesses also did not support and it was an imaginary story put forward by the accused to somehow get rid of the charge of murder. 11. Let us first have a glimpse to the evidence of the eyewitnesses, i.e. PWs 2, 3 and 4 for fair appreciation. PW2 in his deposition stated that on the day of occurrence at about 9.00 AM Mariam Bibi brought him to her house and requested him to ask accused Abdul Mustafa to help her by giving his hand-cart for bringing arum from the field. Accordingly, he requested the accused to help Mariam Bibi with his hand-cart. The accused was reluctant to comply the request and then a quarrel took place in between Mariam Bibi and the accused-appellant. The accused all of a sudden brought one spade from the verandah and hit on the head of Mariam Bibi with it. He tried to resist the accused but could not succeed. Mariam Bibi sustained bleeding injuries due to the assault made by the accused. Seeing the blood on the head of Mariam Bibi he raised alarm and hearing his alarm people came to the spot. Mariam Bibi fell on the ground due to the assault and she was immediately taken to hospital where she succumbed to her injuries. The above statement of PW2 has not been shaken in any manner in the cross-examination. Seeing the blood on the head of Mariam Bibi he raised alarm and hearing his alarm people came to the spot. Mariam Bibi fell on the ground due to the assault and she was immediately taken to hospital where she succumbed to her injuries. The above statement of PW2 has not been shaken in any manner in the cross-examination. Except some suggestion that Mariam Bibi received some letter from extremists demanding money and that on the date of occurrence extremists came to the house of Mariam Bibi demanding money and killed her for not satisfying the demand and further that he did not see the accused assaulting Mariam Bibi with a spade, etc. which were denied by the witness, there is nothing else in the cross-examination. PW3 in her deposition stated that Mariam Bibi, mother of the informant was murdered at about two years ago by the accused in the courtyard of the house of Mariam Bibi. She was in the house of deceased Mariam Bibi when the incident of murder occurred. She found a quarrel to have taken place between Mariam Bibi and the accused regarding hand-cart. She saw the accused suddenly hit deceased Mariam Bibi with a spade on her head. Mariam Bibi sustained bleeding injury on her head and fell down on the ground. She was shifted to Panisagar PHC where she succumbed to her injuries. The above statement of the witness has not been shaken or controverted in the cross-examination in any manner. Except suggestion that she did not see the occurrence and that extremists demanded money from Mariam Bibi, etc. there is nothing else in the cross-examination to shake the version of the witness. PW4 in her deposition stated that mother of the informant was murdered by accused Abdul Mustafa about two and half years ago at about 9.00/10.00 AM. At that time she was in her house which was adjacent to the house of deceased Mariam Bibi. She heard a quarrel going on between the deceased and the accused. Hearing quarrel she rushed to the house of the deceased and found the accused hitting the head of the deceased with a spade. As a result, the deceased got bleeding injury on her head and thereafter fell on the ground. She tried to stop the blood oozing from the injury of the head of the deceased with a piece of cloth. As a result, the deceased got bleeding injury on her head and thereafter fell on the ground. She tried to stop the blood oozing from the injury of the head of the deceased with a piece of cloth. She also poured water on her head. The deceased was immediately taken to hospital where she died. The above statement of the witness has not been shaken in any manner in cross-examination. In cross-examination she denied the suggestion that she was in her husband’s house at Churaibari on the date of occurrence and that she did not see the accused hitting the head of the deceased Mariam Bibi. She also denied the suggestion that Mariam Bibi was killed by the extremists as she was reluctant to give an amount of Rs. 1,00,000/- as demanded by the extremists. 12. PW1, the informant stated that he was working in his arum filed at the time of occurrence and hearing about the occurrence from a local boy he rushed to his house and at that time Abdul Jabbar(PW2), Ratna Begum(PW3) and Ainura Khatun(Begum)(PW4) told him that his mother was assaulted by the accused causing injury on her head by a spade. He narrated the same incident in the FIR lodged by him which was recorded by PW16 at Panisagar PHC. PW6 is the son-in-law of the deceased and he also rushed to the house of Mariam Bibi hearing about the occurrence and found her lying with bleeding injury on heard in the courtyard and he was also told by the eyewitness Abdul Jabbar that the accused assaulted Mariam Bibi on head with a spade and as a result Mariam Bibi received the injury. PW7 is also a neighbour of the deceased and the accused and hearing alarm he also rushed there and found Mariam Bibi lying on the ground in her courtyard with head injury and he along with others shifted Mariam Bibi to the hospital where she died. He also witnessed the inquest report prepared by the I.O. and also witnessed to the seizure of bloodstains. He also stated that he was informed by eyewitnesses Abdul Jabbar, Ratna Begum and Ainura Khatun that the accused assaulted Mariam Bibi on head causing the injury with a spade. He also witnessed the inquest report prepared by the I.O. and also witnessed to the seizure of bloodstains. He also stated that he was informed by eyewitnesses Abdul Jabbar, Ratna Begum and Ainura Khatun that the accused assaulted Mariam Bibi on head causing the injury with a spade. PW10 also in his deposition stated that he is a neighbour of Mariam Bibi and on the day of occurrence hearing hue and cry he rushed to the house of Mariam Bibi and found her lying in the courtyard with bleeding injury on head. He was informed by Abdul Jabbar that accused Abdul Mustafa assaulted Mariam Bibi on head with a spade. Subsequently, darogababu came to the spot and seized the bloodstained earth and spade and he became a witness to the seizure. PW14 is also a witness to the seizure of the spade. The evidence of PWs 8, 10 and 14 are very consistent and have not been controverted or shaken in cross-examination. 13. PW5 is the wife of the accused. She was declared hostile by the prosecution. In her cross-examination by the defence she stated that Mariam Bibi received letter from the extremists demanding money and that on the date of occurrence Mariam Bibi called Abdul Jabbar to her house to negotiate with the extremists regarding payment of Rs. 1,00,000/- as demanded by the extremists. That Abdul Jabbar also visited her house and sat in her house and that her husband was not present in the house. When the extremists did not get the money they killed Mariam Bibi and fled away. In her cross-examination by the prosecution the entire statement recorded by I.O. was referred to the witness and that has been proved as Exbt.3 wherein the witness stated that her husband had a quarrel with Mariam Bibi regarding the hand-cart and that suddenly her husband assaulted Mariam Bibi with a spade. She tried to resist her husband but she was thrown away. PW8 was also declared hostile by the prosecution and in her cross-examination by defence she stated that extremists demanded money writing a letter to Mariam Bibi and she heard that on the date of occurrence the extremist demanded money to Mariam Bibi and she cannot say how she was murdered. PW8 was also declared hostile by the prosecution and in her cross-examination by defence she stated that extremists demanded money writing a letter to Mariam Bibi and she heard that on the date of occurrence the extremist demanded money to Mariam Bibi and she cannot say how she was murdered. After declaring her hostile prosecution cross-examined her and her previous statement recorded by I.O. has been proved as Exbt.5 wherein she made statement that she was informed by Kutubi Begum and Abdul Jabbar that a quarrel was taken place between Abdul Mustafa and Mariam Bibi regarding hand cart and at that time suddenly accused Abdul Mustafa hit on the head of Mariam Bibi with a spade. 14. The evidence of a hostile witness may not be rejected outright but the Court has to be aware that prima facie a witness who makes different statements at different times has no regard for truth. The courts, should, therefore be slow to act on the testimony of such a witness and normally, it should, look for corroboration of the evidence of hostile witness. 15. PW5 is the wife of the accused. Naturally, she may not come out to say anything incriminating against her husband. Her previous statement recorded by I.O. shows that she was an eyewitness of the occurrence since she was residing in the same house compound and according to her she was present in the house and she corroborated the fact that PW2 Abdul Jabbar was present at the time of occurrence. Her statement that extremists killed Mariam Bibi is a statement in the air and she stated nothing specific that she found any extremist came to the house of Mariam Bibi and to assault Mariam Bibi at that time. Her evidence as a whole rather supports the prosecution case and it is settled law that the evidence of a hostile witness may be taken to consideration to the extent it corroborates the case of the prosecution or defence. The statement of this witness does not help the defence since she has not stated anything that she found any extremist in the house and that she found extremists assaulting Mariam Bibi. The evidence of PW8 also rather supporting the prosecution case since she has also stated nothing that she found any extremist came to the area and she rather stated that she did not know how Mariam Bibi was murdered. The evidence of PW8 also rather supporting the prosecution case since she has also stated nothing that she found any extremist came to the area and she rather stated that she did not know how Mariam Bibi was murdered. Her previous statement which is proved as Exbt.5 is supporting the prosecution case. 16. The eyewitnesses, i.e. PWs 2, 3 and 4, indisputably are all close neighbours of the accused as well as the victim. PW2 was already present in the house of the deceased at the time of the occurrence which is admitted by even the hostile witness, i.e. PW5, the wife of the accused. PWs 3 and 4 rushed to the house of the victim and the accused hearing the quarrel and they found the occurrence. There is nothing on record to term them as interested witnesses in any manner. Interested witness means a witness who directly or indirectly has some interest in the case in seeing that the accused person is somehow or otherwise convicted either because he had some animus with the accused or for some other reasons. There is nothing in the evidence on record to suggest that PWs 2, 3 and 4 are interested witnesses in any manner. The argument of learned counsel, Mr. Bhowmik, therefore, has no basis to accept that PWs 2, 3 and 4 are interested witnesses. Rather I find they are wholly reliable witnesses having no animosity with the accused to implicate him falsely. 17. Let us now examine the evidence of defence witnesses. DW1, the accused stated that at the relevant time of occurrence he was not at his house and that he was at Dharmanagar at that time. He stated that a false case has been instituted against him in order to grab his property. In his cross-examination by the prosecution he stated that the incident of murder of his sister-in-law Mariam Bibi was witnessed by the inmates of his house and other persons of the locality. He has also stated that Abdul Jabbar(PW2) is his uncle and Ratna Begum(PW3) and Ainura Khatun(PW4) are his neighbours. He also stated that till the afternoon of the date of occurrence he was in his house and thereafter he went out for the purpose of earning to maintain his livelihood and he surrendered before the Court after two years of the occurrence. He also stated that till the afternoon of the date of occurrence he was in his house and thereafter he went out for the purpose of earning to maintain his livelihood and he surrendered before the Court after two years of the occurrence. It is the prosecution case that the accused was absconding after the occurrence and subsequently he surrendered before the Court after the charge sheet was submitted which is transpired in the evidence of PW 16, the I.O. The evidence of DW1 that Mariam Bibi was murdered by extremists, since she did not satisfy the demand of Rs.1,00,000/- made by the extremist, is a statement in the air and there is no basis of the statement. DW2 in his deposition stated that Mariam Bibi was killed by extremists about three years ago. The extremist demanded Rs. 1,00,000/- to Mariam Bibi and Mariam Bibi refused to give the amount to the extremists and therefore the extremists killed her in her house. She is the adjacent neighbour of Mariam Bibi. Hearing the cries from the house of Mariam Bibi he rushed to her house and found the dead body. Abdul Mustafa was not present when Mariam Bibi was killed. He did not utter a single word that he found extremists killing Mariam Bibi or at least any extremists came to the house of Mariam Bibi at the time of occurrence. He stated that extremists killed Mariam Bibi is a statement in the air having no basis at all. Neither he stated that he witnessed the occurrence nor he stated that he came to know about the occurrence from anybody else. In his cross-examination by the prosecution he stated that the wife of the accused is his sister and so he is the brother-in-law of the accused. DW3 is the mother of the accused and living with the accused in his house. She only stated that Mariam Bibi is her daughter-in-law(wife of elder son) and she was killed by the extremists about three years ago on demand of Rs. 1,00,000/-. She also did not utter anything that she witnessed the occurrence or that she came to know about the occurrence from anybody else. Her statement also carries no weight at all. DW4 is the sister of the accused and she also stated that Mariam Bibi was murdered by the extremists in her house demanding Rs. 1,00,000/-. She also did not utter anything that she witnessed the occurrence or that she came to know about the occurrence from anybody else. Her statement also carries no weight at all. DW4 is the sister of the accused and she also stated that Mariam Bibi was murdered by the extremists in her house demanding Rs. 1,00,000/- and after the incident of murder she visited the house of her brothers. This witness also stated nothing that she witnessed the occurrence that extremists killed Mariam Bibi or that she was reported by any eyewitness that extremists killed Mariam Bibi. So the evidence of DW4 also has no weight at all to consider the defence version. Learned Addl. Sessions Judge, in my considered opinion, rightly evaluated the defence evidence and discarded it from consideration. I find no merit in the submission of learned counsel, Mr. Bhowmik that the evidence of DWs has not been properly considered in the same standard as that of the prosecution evidence. A careful consideration of the evidence of DWs, I find no legal evidence to prove the fact that extremists killed Mariam Bibi on that day. The evidence of DWs does not in any way shake the evidence of eyewitnesses, i.e. PWs 2, 3 and 4. 18. Learned Addl. Sessions Judge found the accused guilty of committing offence punishable under Section 304 Part II of IPC. It is observed by learned Addl. Sessions Judge that there was no previous intention of the accused to commit murder and in the midst of quarrel he picked up the spade from his verandah and hit on the head of the deceased. The finding about sentence has not been challenged by the prosecution. Learned counsel, Mr. Bhowmik has submitted that if it is found that the accused had committed the offence of culpable homicide not amounting to murder, the punishment may be reduced to the period already suffered by the accused since the accused-appellant is in custody from the date of judgment i.e. from 12.04.2011. In support of his contention learned counsel, Mr. Bhowmik referred the case of Ramprakash Singh v. State of Bihar reported in AIR 1998 SC 1190 wherein the apex Court while converting the punishment under Section 302 to one under Section 304 Part II, sentenced the accused for the period he already suffered in jail, before trial and after trial. In support of his contention learned counsel, Mr. Bhowmik referred the case of Ramprakash Singh v. State of Bihar reported in AIR 1998 SC 1190 wherein the apex Court while converting the punishment under Section 302 to one under Section 304 Part II, sentenced the accused for the period he already suffered in jail, before trial and after trial. There is no legal impediment in directing release of a convict who is in custody and suffering sentence to be punished for the period already suffered and then to release him. But it will depend on the facts and circumstances of each case. No straightjacket formula can be applied in each and every case to release the convict from custody with punishment already suffered. In this case, I find no justification at all to issue direction to punish the accused for the period already suffered and to release him from custody. The accused being the brother-in-law of the deceased, residing in the same house compound, in the midst of a quarrel, picked up a spade from his verandah and hit on the head of the deceased causing fatal injury and as a result the deceased collapsed on the spot and she was declared dead in the hospital. The trial Court found that the accused had no previous motive or intention to kill the deceased. That finding of the trial Court has not been challenged. There is clear evidence that the accused in the midst of quarrel committed the offence and it suggests that on a sudden hit of the moment he did so. The trial Court while convicting the accused under Section 304 Part II sentenced him to suffer R.I. for eight years and no fine imposed. In the facts and circumstances of the case, I am of considered opinion that R.I. for 5(five) years and a fine of Rs. 25,000/-, in default of payment of fine, to suffer S.I. for further 2(two) years shall meet the ends of justice. 19. Accordingly, the appeal is dismissed subject to modification of sentence. It is ordered that the accused-appellant Abdul Mustafa shall suffer R.I. for 5(five) years and shall pay a fine of Rs. 25,000/-, in default of payment of fine, shall suffer further S.I. for 2(two) years. Fine money, if released be given to the son of the victim, i.e. the informant Faruk Uddin(PW3) as compensation. 20. It is ordered that the accused-appellant Abdul Mustafa shall suffer R.I. for 5(five) years and shall pay a fine of Rs. 25,000/-, in default of payment of fine, shall suffer further S.I. for 2(two) years. Fine money, if released be given to the son of the victim, i.e. the informant Faruk Uddin(PW3) as compensation. 20. The appeal, accordingly, stands disposed of. 21. Send back the L.C. records along with a copy of the judgment.