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2015 DIGILAW 383 (CAL)

Sajjad Ali v. State of West Bengal

2015-04-29

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. In this appeal the judgment and order of conviction passed under Section 304 Part II of the Indian Penal Code by the Ld. Additional Sessions Circuit Court, Islampur on 13th September, 1985 thereby sentencing the appellant to three years rigorous imprisonment in Sessions Trial No. 7 of 1985 is under challenge. 2. The appellant is an agriculturist by profession. The Charge against the appellant is that on the 13th of September, 1981 at about 6-6:30 pm in the place Dakshin Mohanpur within P.S. Karandighi, West Dinajpur District the appellant committed culpable homicide not amounting to murder by causing the death of one Nuhu Sk. of Dakshin Mohanpur by beating him with a yoke (langal). The appellant thereby committed an offence under Section 304 IPC read with Section 34 IPC. The appellant who, along with his wife were the accused pleaded innocence and claimed to be tried. 3. According to the complaint lodged on the next date of the offence, i.e. 14th September, 1981 by the father of the deceased, Lokman Ali of village Dakshin Mohanpur at about 10 clock in the morning on the previous date i.e. 13th of September, 1981 his son, Nuhu Sk. was ploughing the field on the southern side of their house. During such time a goat belonging to the appellant entered the field and ate a creeper of sweet potatoes. On seeing this Nuhu Sk. held the goat and tied the animal in his house. 4. Being offended that their goat was detained by Nuhu Sk. the appellant and his wife, Bibi Hazra began to abuse Nuhu Sk. in filthy language whereupon Nuhu Sk. went to call other persons from their village. The parties were asked to stop their quarrel and, to arrive for a salishi (compromise) meeting at 3 pm with other villagers. At this salishi the goat was allowed to be returned to its owner and the parties were directed to maintain peace between themselves. 5. However, with the onset of evening the appellant and his wife resumed their abuses against Nuhu Sk. Nuhu Sk. thereafter again approached the other villagers and particularly, Abdul Sattar and Abdul Kuddus complaining to them of the further abuses. Nuhu Sk. was told to return to his house with the assurance that the matter will be looked into soon. 6. However, with the onset of evening the appellant and his wife resumed their abuses against Nuhu Sk. Nuhu Sk. thereafter again approached the other villagers and particularly, Abdul Sattar and Abdul Kuddus complaining to them of the further abuses. Nuhu Sk. was told to return to his house with the assurance that the matter will be looked into soon. 6. While returning to his house to the west of the house of the appellant at around 6-6:30 pm both the appellant and his wife caught hold of Nuhu Sk. and began to beat him. The appellant struck Nuhu on his head with a ladna in his hand and Nuhu fell down to the ground in a supine position whereupon the wife of the appellant, Bibi Hazra began to beat Nuhu with a yoke in her hand. 7. On hearing the news of the beating the wife of the complainant, Bibi Syeda and his youngest son, Motibur went there and they were also beaten up by the wife of the appellant. However, the appellant fled away at that time. Several witnesses of the village saw the incident. The complainant, father of Nuhu Sk. who was employed as a teacher was also told about the incident and came to find his injured son. They proceeded to carry the injured Nuhu Sk. to Karandighi Hospital and, on the way Nuhu Sk. expired. 8. Thereafter, complaint was lodged with the police. 9. Sri Tapas Midya, Ld. Counsel appearing for the appellant takes this Court to several portions of the judgment of the Ld. Trial Court and points out that the weapon of assault was never produced in Court. The non-production of the weapon of assault by which Nuhu Sk. died emerges from the evidence of the Investigation Officer (for short IO)- PW12. 10. Ld. Counsel argues that on the ground on non-production of the weapon of assault the Accused No.2, being the wife of the appellant was acquitted. Relying upon a portion of the Ld. Trial Court Judgment Sri Midya submits that it has been recorded as follows:- "In any case this swelling in the abdomen did not cause any internal damage to the body of Nuhu sk. and the injury in all probabilities was superficial in nature. It may have been caused by Safer, her daughter or even Bibi Hajra when she was assaulted by Nuhu Sk. and the injury in all probabilities was superficial in nature. It may have been caused by Safer, her daughter or even Bibi Hajra when she was assaulted by Nuhu Sk. since the prosecution has chosen not to produce the yoke in this case I give a benefit of doubt to Bibi Hajra and hold that she in all probabilities did not cause any injury to Nuhu Sk. and the injury detected by the doctor was in any case minor and superficial in nature. I, therefore, hold that the prosecution has not been able to prove the charge under section 304/34 I.P.C. against the accd. Bibi Hajra and she is liable to be acquitted." 11. Sri Midya therefore further argues that the benefit of doubt which was extended to the Accused No.2, the wife of the appellant ought also to have been extended on the same ground in favour of the appellant. 12. Further taking is Court to the evidence of the IO-PW12 Sri Midya points out that from the evidence the following has emerged:- "I seized the tiles which I found the Agnina near and around the P.O. I seized the articles from the P.O. but they were not identified by anybody. I seized them on the understanding that the articles might have been used in the assault on Nuhu Sk. as they were lying in the courtyard of Sajjat. Mat.Ext- II, the yoke produced in the court today is not the one which I had seized as per siezure list. Mat. Ext- IV the bamboo produced in the court is not the one which I had seized as per seizure list. No witness had told me that Nuhu was assaulted by a mango branch. Mat. I is not a mango brach but it is a branch of pakur tree." 13. Ld. Counsel submits that from the evidence of the vital witness PW12-IO it is apparent that there is confusion with regard to the identity of the weapon used in the assault. While such confusion was taken note of by the Ld. Trial Court and the Accused No.2 acquitted, the Ld. Trial Court committed a gross error of law by failing to apply a similar yardstick in favour of the appellant. 14. Ld. Counsel makes the additional point that all Material Exhibits. were not produced before the Ld. While such confusion was taken note of by the Ld. Trial Court and the Accused No.2 acquitted, the Ld. Trial Court committed a gross error of law by failing to apply a similar yardstick in favour of the appellant. 14. Ld. Counsel makes the additional point that all Material Exhibits. were not produced before the Ld. Trial Court during trial and, such emerges from the evidence of PW12-IO (supra). Also, most of the prosecution witnesses (PWs) were related to each other. 15. In this connection Sri Midya draws the attention of this Court to the finding arrived at by the Ld. Trial Court to the effect that most of the witnesses examined such as PWs 2 and 3 are interrelated and that close neighbours were not examined. 16. Ld. Counsel at this point submits that the Ld. Trial Court ought to have taken notice of the fact that both the parties were engaged in a scuffle. Therefore it became necessary to correctly identify the exact injuries which may have been suffered by either of the parties to the scuffle. 17. Relying upon the decision in Lakshmi Singh and Others v. State of Bihar reported in 1976 CriLJ 1736, Sri Midya strenuously points out that it is even necessary to explain the injuries suffered by the accused persons themselves in the scuffle. Ld. Counsel argues that the injuries to the Accused No.2 were not properly explained. In this connection Ld. Counsel takes this Court to the evidence of DW1, a doctor posted at the relevant time as Medical Officer, Karandighi Public Health Centre. DW1 examined the Accused No.2, Bibi Hajra and came to the conclusion that one of the injuries, being the injury no.3 was not grievous in nature. However, the injury was caused at a place where the kidney is located and the injury may have been caused with any hard and blunt object such as the branch of a tree. Therefore, Sri Midya argues that it is equally true that the accused suffered injuries and particularly the Accused No.2 as per the above noted evidence of DW1. In view of the injuries sustained in a quarrel between the parties and in the light of the non-production of the weapon of assault as well as in the context of PW12-IO stating that the alleged objects of assault being the yoke (Mat. Ext. II), the bamboo (Mat. Ext. In view of the injuries sustained in a quarrel between the parties and in the light of the non-production of the weapon of assault as well as in the context of PW12-IO stating that the alleged objects of assault being the yoke (Mat. Ext. II), the bamboo (Mat. Ext. IV) and the mango branch (Mat. I) were not the objects seized by him, the appellant was equally entitled to a benefit of doubt as extended to his wife, the Accused No.2. 18. It is the further argument of Sri Midya, Ld. Counsel that the eyewitnesses to the incident could not have seen the occurrence in poor visibility. Ld. Counsel submits that the incident occurred between 6-6:30 pm at sunset when the visibility was low. Therefore there could be no proper visibility at the P.O. at the time of the incident and it was not possible for any eye-witness to correctly see who assaulted whom. In this connection Ld. Counsel takes this Court to the statement of Bibi Hajra, the Accused No.2 recorded by the Ld. Magistrate under Section 313 CrPC. According to the statement of Bibi Hajra she was assaulted by the deceased, Nuhu Sk. and when she was assaulted, it was her daughter Safera who then hit him on the head with the branch of a tree from behind. Accused No.2 further states that in view of the assault on them and attack on their house by the men of Nuhu Sk., the inmates of their house had to flee. On the point that visibility was not clear at the time of the occurrence Sri Midya takes this Court to the deposition of PW3. PW3, the wife of Nuhu Sk. has deposed that she witnessed the incident which happened when her husband was coming on the village road in front of the house of the accused and she was standing at the gate of her house. 19. Taking this Court to the relevant part of the evidence Sri Midya points out that PW3 has stated as follows:- "The meeting of the villagers was held at about 3 p.m. This meeting continued up to the time the Sun was going to set and the time of Namaj was nearing. When the villagers went away for namaj the two accd. Again began to abuse us. Bibi Hajra began to abuse us within half an hour after the meeting was ended. When the villagers went away for namaj the two accd. Again began to abuse us. Bibi Hajra began to abuse us within half an hour after the meeting was ended. It was already dark. The jackfruit tree is 5/6 cubits away to the east from the village road and the house of Sajjat is adjacent to the road. The tree belongs to Sajjat and he tied his goat and cows there. Sajjat was standing on the village road when my husband came. My mother in law was in the Khamar. There is a goli and Goli and khamar are the same. My mother-in-law and my Debar went ahead of me to the place where my husband was lying. Mustafa, Yonush, Imran and I reached there together. The two accd. had already fled away. I cannot say who damaged the tiles of Sajjat. Not a fact that Safera and Bibi Hajra had sustained injuries. In the meeting the Pradhan and member of the village had no come. Bibi Hajra attacked my husband in his abdomen thrice. The entire abdomen had swelling." 20. Elaborating further Sri Midya submits that the fact that it was dark also emerges from the evidence of PW2, Saheda Khatun (Bibi), the mother of the deceased, Nuhu Sk. The lack of visibility is also apparent from the evidence of PW10, Abdul Kuddus, a co-villager who stated that the incident happened in the evening. 21. From the evidence of PWs 2 and 3 Sri Midya elaborates that there is difference with regard to the identity of the weapons of assault. The weapons of assault which were stated in the evidence of PWs 2 and 3 were not the ones produced in Court and such will appear from the evidence of PW12-IO. Sri Midya further argues that PW2, the mother of the deceased is not a witness to the actual occurrence. Ld. Counsel submits that in the scuffle when 4-5 persons are involved as has been testified to by several witnesses, then it is not clear as to who hit whom. 22. Per contra, Sri Amarta Ghose, Ld. State Counsel submits that with regard to the incident on the fateful date i.e. 13th of September, 1981 the evidence of PW2 is clear. PW2 is the mother of the deceased, Nuhu Sk. Sri Ghose, Ld. Counsel points out that PW2 is an eye-witness to the incident. 22. Per contra, Sri Amarta Ghose, Ld. State Counsel submits that with regard to the incident on the fateful date i.e. 13th of September, 1981 the evidence of PW2 is clear. PW2 is the mother of the deceased, Nuhu Sk. Sri Ghose, Ld. Counsel points out that PW2 is an eye-witness to the incident. She clearly testifies to the incident of assault and her evidence assumes significance inasmuch as she has come to Court to depose after the demise of her son. The evidence of PW2 has not been shaken in cross-examination and she is a credible witness. 23. Taking this Court to the evidence of PW2 Sri Ghose points out that she has deposed as follows:- "P.W.1 is my husband. and I reside in village Mohanpur. My son Nuhu was murdered on Sunday in the evening about 4 years ago 3 days before the expiry of Bhadra. There is a village road and on the east of that is the house of Sajjad. On the west is my house. Sajjat first hit on the head of my son with a mango branch (ladna) and my son fell on the ground with his head on the west and feet on the east. There was profusel bleeding from his head. Accd. Bibi Hajra then came and assaulted him on the abdomen of my son with a yoke. I saw the incident from my goli. Seeing the incident I ran there and Bibi Hajra assaulted me on my right shoulder. She assaulted my son Motibur on his left hand and back. Imran, Mustafa, and Yunush also saw the incident. My daughter in law also ran there. We brought Nuhu in my house. My husband was in village Raghabpur. I sent Hanif and Ajijur to inform him." 24. Ld. State Counsel points out that PW2 has given a faithful sequence of events on the fateful evening. The evidence of PW2 was given in respect of an event which occurred 4 years back and yet she has deposed in detail that the deceased, her son, Nuhu Sk. was hit on the head by the appellant with a mango branch (ladna) and, as he fell there was profuse bleeding from his head. Thereafter he was assaulted on the abdomen by Bibi Hajra, wife of the appellant with a yoke. 25. was hit on the head by the appellant with a mango branch (ladna) and, as he fell there was profuse bleeding from his head. Thereafter he was assaulted on the abdomen by Bibi Hajra, wife of the appellant with a yoke. 25. Sri Ghose further points out that PW2 states that she, upon seeing the incident ran to the spot whereupon she was assaulted by Bibi Hajra on the right shoulder. Bibi Hajra also assaulted her son, Matibur on his left hand and back. Other people also witnessed the incident. 26. Ld. Counsel, Sri Ghose further argues that the evidence of PW2 has been corroborated by the evidence of PW11. PW11 is the doctor and then attached to Raiganj S.D. Hospital. At the relevant time he was posted as Medical Officer at Raiganj Hospital. In his evidence PW11 states that he carried out the post mortem examination on the dead body of Nuhu Sk. which was identified by the constable. He found the following injuries:- "1. One lacerated wound 3" X ½" X scalp deep over occipital region of head. 2. One swelling over right side of upper part of abdomen size: 3" X 2". I found occipital bone fracture right partial bone fracture base of skull fractured. On dissection collection of blood into the interior cranial fossa was found, extra cessation of blood and firm clotted blood under the injuries noted above. Injury no.I was grevious in nature and it was sufficient to cause death. The death, in my opinion was due to shock and haemorrhage as a result of injuries noted above which are antemortem and homicidal in nature. Such injuries might be caused by heavy blunt weapons such as mat. Ext- I and II and IV." 27. Ld. State Counsel submits that PW11-post-mortem Doctor clearly identified each of the wounds of the deceased. The wounds on the deceased as identified by PW11 were the injuries which were testified to have been suffered by the deceased at the time of assault and seen by PW2. Sri Ghose therefore submits that the medical evidence matches the ocular evidence. 28. The injuries to the Accused No. 2 as testified to by DW1 may be the outcome of a scuffle or there may be doubt with regard to the nature of such injuries which may be self-inflicted. 29. Ld. State Counsel argues that the Ld. Sri Ghose therefore submits that the medical evidence matches the ocular evidence. 28. The injuries to the Accused No. 2 as testified to by DW1 may be the outcome of a scuffle or there may be doubt with regard to the nature of such injuries which may be self-inflicted. 29. Ld. State Counsel argues that the Ld. Trial Court has dealt with the impact of the prosecution evidence on the case. Taking this Court to the relevant portion of the judgment of the Ld. Trial Court Sri Ghose submits that it runs as follows:- "The accd. has examined Dr. R.S. Gupta ss D.W.1 and he says that Safera Khatoon was 10 (ten) years old when he examined her on 14.9.81. Can it be expected from a girl only 10 years old to hit on the head of Nuhu Sk. who was then 25 years old with such a force which caused multiple fractures in the occipital region of his head? In my view it is not only improbable but it is impossible for a girl Or.P.38. like Safera aged only 10 (ten) years old to cause such a grievous injury on the head of Nuhu Sk. This is further corroborated by the fact that Nuhu Sk., a young man of 25 was quite fit to resist Sajjad and his wife because he had caught their goat during the day and in spite of their shouting he did not release the goat till the villagers intervened in the meeting. So the defence story that Safera caused the injury on the head of Nuhu Sk. cannot be believed. The witnesses like Sayeda Bibi, Dulab Khatoon and Mustaque who saw the incident from a close distance as seen from the rought sketch map Ext.6 say that it is Sajjad and not Safera who attacked on the head of Nuhu Sk. with a Ladna and therefore, I hold that Sajjad Ali alone attacked Nuhu Sk. in the evening of 13.9.81 under the jackfruit tree causing grievous head injury to him in the occipital region which resulted in his death." 30. It is the further argument of Ld. State Counsel that due to the fact that the appellant was all along on bail, any delay in hearing of the appeal cannot be complained of by him at this stage. 31. It is the further argument of Ld. State Counsel that due to the fact that the appellant was all along on bail, any delay in hearing of the appeal cannot be complained of by him at this stage. 31. Having heard the parties and going through the evidence on record this Court is sufficiently persuaded by the argument of Ld. State Counsel that the ocular evidence is clear. Such ocular evidence emerges from the deposition of PWs 2 and 3 namely, the mother and wife of the deceased. 32. Both PWs 2 and 3 have given a clear sequence of the nature of the assault and the injury sustained by the deceased, Nuhu Sk. They have also testified to the clear background to such incident of assault. 33. As correctly argued by Ld. State Counsel PW11-post-mortem Doctor has corroborated the injuries suffered by the deceased as given in the evidence of PW2. 34. The actual incident of 13th of September, 1981 occurred in the background of acrimonious relations between the parties following the incident of the goat of the appellant entering into the field of the deceased. Therefore, this Court notices that the essential facts in the nature of medical and ocular evidence corroborate each other. 35. Such medical and ocular evidence read in the background to the entire incident between the parties as noticed above, leads to the conclusion that there is no infirmity in the judgment and order of the Ld. Trial Court holding the appellant guilty under Section 304 Part II IPC and convicting him. The conviction of the appellant under Section 304 Part II IPC is therefore upheld. 36. Sri Midya at his stage argues that this appeal has been finally heard after an enormous lapse of time and, in the meantime the appellant has become of advanced age. Ld. Counsel therefore prays for a lenient treatment of the appellant. 37. However, this Court cannot be oblivious to the gravity of the crime committed by the appellant. Therefore the appellant is sentenced to three years of simple imprisonment. 38. The bail granted to the appellant shall stand automatically cancelled and he shall surrender before the Ld. Trial Court to serve out his sentence. 39. Let a copy of this order be communicated forthwith to the Ld. Trial Court by the Registry for executing the sentence. 40. CRA 376 of 1985 stands accordingly dismissed.