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Tripura High Court · body

2015 DIGILAW 8 (TRI)

Fazal Ahammed Khan v. State of Tripura

2015-01-08

S.C.DAS

body2015
JUDGMENT S.C. Das, J. 1. This criminal appeal under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence dated 27.11.2012 passed by the learned Sessions Judge, North Tripura, Kailashahar in Sessions Trial Case No. S.T. 59(NT/K) of 2011, whereunder the learned Sessions Judge found the accused-appellant guilty of committing offence punishable under Section 304Part-II of IPC and sentenced him to suffer R.I. for seven years and to pay a fine of Rs. 10,000/-, in default of payment to suffer further S.I. for one year. 2. Heard learned senior counsel, Mr. P.K. Biswas, for the appellant and learned Additional Public Prosecutor, Mr. R.C. Debnath, for the State-respondent. 3. Prosecution case is that on 23.08.2010 at about 9 am the victim Tanu Miah went to the house of his brother-in-law, Tabarak Ali (sister's husband) and found Tabarak Ali and accused Dewan Khan were altercating/quarreling over a plot of land and Tanu Miah while asked both the party not to quarrel, the accused-appellant along with others armed with lethal weapons attacked Tanu Miah and inflicted injuries on his person. Tabarak Ali tried to save Tanu Miah and at that time he was also assaulted causing severe injuries. It is the case of the prosecution that the appellant inflicted injury on the left side of the chest of Tanu Miah by a Katail (a sharp weapon like dagger) and as a result Tanu Miah sustained grievous injury and when he was taken to hospital he was declared dead. 4. FIR was lodged by P.W.15, Moula Miah, on the date of occurrence itself i.e., on 23.08.2010 at about 1315 hours and on the basis of that FIR, Kailashahar P.S. Case No. 168/2010 under Sections 302/326/325 read with Section 34 of IPC was registered and investigation was taken up. The appellant was named in the FIR along with 8 others and after completion of investigation I/O submitted charge sheet against the appellant and others and in course of trial learned Sessions Judge framed charges against the appellant and five others for commission of offence punishable under Section 302 read with Section 34 of IPC for causing death of Tanu Miah and under Section 323 read with Section 34 of IPC for voluntarily causing hurt to Tabarak Ali. 5. 5. In course of trial, prosecution examined 18 witnesses and exhibited the FIR, postmortem report as well as injury report, seizure list of weapon of offence as well as the seized weapons and the wearing apparels of the deceased etc. 6. After recording of prosecution evidence was over, the accused persons including the accused-appellant were examined under Section 313 of Cr.P.C. and thereafter in their turn they declined to adduce any defence evidence. 7. The accused-appellant besides denial of the prosecution case, in his statement recorded under Section 313 of Cr.P.C. further stated that he was innocent and that on the date of occurrence his mother Khela Begam was ploughing in her own land and at that time all on a sudden Tabarak Ali, Tanu Miah and his relations came their with deadly weapons and attacked his mother, hit her and forcefully evicted her from the land. In order to defend herself, his mother started crying and when she was trying to flee away, those persons detained her in the nearby land of Warish Ali and beaten her there. Hearing his mother's cry, his relatives, namely, Khokan Miah, Sahish Ali, Asique Ali and some other villagers came to rescue his mother and at that time a fight was started in between both the group. Due to fight his mother received injuries and the opponent party also received injuries. That land was possessed by her mother for a long time. He and all other accused persons were not present at the place of occurrence on the date of incident. Hearing the incident he came later on. 8. Learned Sessions Judge by impugned judgment only held the accused-appellant guilty of committing offence punishable under section 304 Part II of IPC and sentenced him accordingly as aforesaid. He has acquitted the other five accused persons from the charges. The State did not prefer any appeal alleging inadequacy of sentence of appellant or against the order of acquittal of other five accused persons. The convict appellant Fazal Ahamed Khan preferred the present appeal challenging the judgment and order of conviction and sentence passed by the learned Sessions Judge against him. 9. Learned senior counsel, Mr. Biswas, appearing for the appellant has submitted that all the prosecution witnesses, who claimed to be eyewitnesses of the occurrence made exaggerated statements. The convict appellant Fazal Ahamed Khan preferred the present appeal challenging the judgment and order of conviction and sentence passed by the learned Sessions Judge against him. 9. Learned senior counsel, Mr. Biswas, appearing for the appellant has submitted that all the prosecution witnesses, who claimed to be eyewitnesses of the occurrence made exaggerated statements. The material part of the statement of witnesses contradicted with their earlier statement recorded by I/O. So, the prosecution witnesses should not have been believed by the learned Sessions Judge and the accused-appellant should not have been convicted under Section 304 Part II of IPC. It is also submitted that in the FIR nine accused persons were named including the appellant, whereas I/O did not submit charge sheet against all of them. In course of trial, charges were framed against six accused persons including the appellant and out of them, three accused were included later on under Section 319 of Cr.P.C. Though the charge has been framed alleging that all the accused persons out of their common intention committed the offence but the learned Sessions Judge rightly did not believe the prosecution story of the common intention and acquitted all the accused persons from the charges under Section 302 and 323 read with Section 34 of IPC, but wrongly singled out the accused-appellant and convicted him under Section 304 Part II of IPC. The judgment and order of conviction, therefore, cannot stand in the eye of law and is liable to be set aside. 10. Learned Additional P.P., on the other hand, has submitted that P.W.2, Tabarak Ali is the injured witness and the trial Court believed his evidence, which has not been shaken in any manner. He has been corroborated by the evidence of other witnesses and considering the entire evidence on record, the trial Court arrived at a correct finding of guilt of the appellant. 11. Tanu Miah died a homicidal death on receipt of ante mortem injuries in the incident occurred on 23.08.2010 at about 9 am, is not disputed. The accused-appellant in his statement under Section 313 of Cr.P.C. clearly admitted the fact of presence of Tanu Miah along with Tabarak Ali in the scene of occurrence. 11. Tanu Miah died a homicidal death on receipt of ante mortem injuries in the incident occurred on 23.08.2010 at about 9 am, is not disputed. The accused-appellant in his statement under Section 313 of Cr.P.C. clearly admitted the fact of presence of Tanu Miah along with Tabarak Ali in the scene of occurrence. It is the stand of the accused that to save his mother, his relatives gathered in the scene of occurrence and at that time there was a free fight between Tanu Miah, Tabarak Ali etc. in one side and his relatives in the other side and both side received injuries. He has simply pleaded that he and other accused persons, who were charged in the criminal trial, were not present in the spot. 12. The trial Court, as I find, carefully scrutinized the evidence on record and arrived at a finding that previous meeting of mind and prearrange plan of accused persons for causing murder of Tanu Miah has not been proved and, therefore, he acquitted all the accused persons from the charges framed under Sections 302 and 323 read with Section 34 of IPC. He has however, after careful scrutiny of the evidence, believed P.W.2 in respect of injury inflicted by the accused-appellant on deceased Tanu Miah and held him guilty under Section 304 Part II of IPC. It is not in dispute that Tabarak Ali also sustained injury in the incident. 13. In his deposition, P.W.2, Tabarak Ali stated that one and half years ago on a day at about 8 he was planting paddy in his own land. Dewan Khan, Fazal Khan, Amad Khan, Khela Begam, Usha Begam, Sayab Ali, Chatir Ali, Barik, Imran Khan appeared there. Fazal holding Katail, Dewan Khan lathi, Amad, Imran and other women holding dao and lathi, Barik holding dao and Sayeb also holding lathi. All the accused objected to planting paddy and quarrel with him. He cried. His brother-in-law, Tanu Miah came, requested accused not to quarrel and that they would settle the matter. Chattar Ali instructed to attack. Then Dewan Khan firstly hit Tanu Miah on the head by lathi. At once Fazal hit Tanu Miah by katail on the left side of his chest. Tanu Miah fell down on the ground. Other accused assaulted him by various weapons. He went to rescue Tanu Miah. Chattar Ali instructed to attack. Then Dewan Khan firstly hit Tanu Miah on the head by lathi. At once Fazal hit Tanu Miah by katail on the left side of his chest. Tanu Miah fell down on the ground. Other accused assaulted him by various weapons. He went to rescue Tanu Miah. Imran Khan assaulted on his head by Lathi on the right side and he fell down. He lost his sense. He regained his sense at Kailashahar hospital and was under treatment for 8 days. Tanu Miah succumbed to the injuries in the hospital. 14. The evidence of this injured witness in respect of inflicting injury by accused-appellant Fazal with a Katail on the left chest of Tanu Miah has not been shaken in cross-examination. P.W.17, Dr. Keshab Sen Laskar, examined P.W.2 in the hospital and submitted injury report. That evidence of P.W.17 and the exhibited injury report, i.e. Exbt.-3, supports the contention that Tabarak Ali sustained injury in the occurrence and so, it is amply established that Tabarak Ali is the eyewitness of the occurrence. His statement that the accused-appellant inflicted a katail blow on the left chest of deceased Tanu Miah since has not been shaken can be safely relied on for arriving at a conclusion. 15. P.W.12, Dr. Kajal Das conducted postmortem examination over the dead body of deceased Tanu Miah on the date of occurrence itself. The evidence of P.W.12 shows that he found following injuries on the person of deceased Tanu Miah:-- "One incised wound measuring 3 cm left side of chest, it was deep piercing into the heart, lung, blood also coming out from the wound, also from mouth and nose. Another incised wound left foot measuring 5 cm x 5 cm. Another punctured wound 2 cm x 2 cm lower lung, hard and slim, wound sized was sharp and downward. All injuries are ante mortem, caused by sharp cut wound. Cut injury over 8 ribs. Due to massive haemorrhage, ante mortem and homicidal in nature." Exbt.-3 is the postmortem report submitted by P.W.12. Injury No. 1 alleged to have inflicted by the accused-appellant with a Katail(dagger). 16. Evidence of P.Ws. 8 and 15 shows that katail is a pointed sharp weapon like a dagger with which the accused alleged to have inflicted the injury in the left side of the chest of deceased piercing into the hurt, lung etc. Injury No. 1 alleged to have inflicted by the accused-appellant with a Katail(dagger). 16. Evidence of P.Ws. 8 and 15 shows that katail is a pointed sharp weapon like a dagger with which the accused alleged to have inflicted the injury in the left side of the chest of deceased piercing into the hurt, lung etc. and the deceased died because of massive haemorrhage. It is, therefore, evident that only one injury was inflicted by the accused-appellant and besides that injury, there were two other severe injuries on the person of deceased which has also caused haemorrhage. 17. P.Ws 1, 3, 4, 5, 6, 8, 9, 11 and 15 all claimed to be eyewitnesses of the occurrence, but on scrutiny of their evidence the trial Court rightly observed that the material part of their statement was contradicted with their earlier statement and so, they could not be relied on. 18. Separating the grains from the chaffs is an accepted principle of criminal jurisprudence and if the grains can be separated from chaffs, the Court can well act upon the grains rejecting the chaffs. The trial Court, therefore, committed no wrong in accepting the grains while separating chaffs from the grains. 19. In the given facts and circumstances of the case, where the homicidal death of Tanu Miah has been proved with overwhelming evidence and while it is an accepted case of the accused that there was a free fight between two groups and Tanu Miah and Tabarak Ali were in one group and his mother and other relatives were in the other group, the prosecution case that the accused was a part of that group, who has inflicted injuries on the person of the deceased, cannot be thrown overboard simply on the ground that the evidence of other witnesses all were improved versions or exaggerated statements. 20. P.W.15 lodged the FIR claiming to be an eyewitness of the occurrence. FIR is proved as Exbt.-1. In the FIR he named nine accused persons including the accused- appellant. But all of them were not charge sheeted after investigation. 20. P.W.15 lodged the FIR claiming to be an eyewitness of the occurrence. FIR is proved as Exbt.-1. In the FIR he named nine accused persons including the accused- appellant. But all of them were not charge sheeted after investigation. Though P.W.15 claimed to be an eyewitness in the FIR, but his subsequent statement recorded by I/O, a part of which has been marked as Exbt.-7, shows that he was not an eyewitness of the occurrence, but he went to the spot immediately after the occurrence hearing hue and cry and found Tanu Miah and Tabarak Ali lying with injuries and thereafter shifted them to hospital. Evidence of other witnesses also is found to be in contradiction with their earlier statement recorded by I/O, which has been reflected in the judgment of the trial Court. 21. Prosecution as well as defence has been conducted most callously. Anyway, at this stage the evidence so far recorded during trial cannot be improved. The trial Court also was not effective and with active role at the time of recording evidence. Even the learned trial Judge did not make correction of the evidence of the witnesses and silly mistakes are apparent, which appears to be typographical and constructional, ought to have been corrected by the learned trial Judge. The learned trial Judge is, therefore, advised to be careful in future and to remain active in conducting the trial. 22. The accused-appellant only inflicted one blow on the left side of chest of the deceased by sharp pointed weapon, which has pierce into heart, lung etc. Postmortem report clearly reveals besides that injury inflicted by accused, there were some other injuries also which has caused haemorrhage. So, the sole injury alleged to have inflicted by the accused was not the only cause of death of the deceased and, therefore, coming down to a lesser penal provision was justified and I find no reason at all to interfere in the judgment and order of conviction and sentence passed by the learned trial Judge. 23. The appeal, therefore, is found to be devoid of any merit and hence, it stands dismissed. 24. Send back the lower court record along with a copy of this judgment.