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2016 DIGILAW 1099 (GAU)

Md. Saijuddin v. State of Assam

2016-12-08

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : AJIT SINGH, J. 1. The sole appellant Md. Saijuddin has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.25,000/- with default stipulation. Son Md. Amir Ali of the appellant was also co-accused in the trial. But since he was found to be juvenile, his case has been referred to the Juvenile Justice Board. 2. The victim of incident was Abdul Mazid. 3. According to the prosecution case, Md. Abdul Mazid lived in the neighbourhood of appellant. He believed that the cock/hen of appellant had damaged his cultivation. And on this issue, he had a quarrel with the appellant around 5 a.m. on 12.11.2006. The appellant and his son Md. Amir Ali then caused injuries to him with their respective lathis. Md. Fazar Ali (PW-2), Kashida Begum (PW-3), Sukur Ali (PW-6) and Nazirul Hoque (PW-7) are eye witnesses to the incident. Md. Hasmat Ali (PW-1) saw the appellant and Amir Ali running away from the spot. After receiving the injuries Md. Abdul Mazid fell on the ground. He was immediately taken to the hospital where he died during treatment on the same day around 4.30 p.m. Md. Hasmat Ali therefore made ejahar exhibit 1 at Police Out-Post Kharupetia falling within the jurisdiction of Police Station Dalgaon. In the ejahar Md. Hasmat Ali categorically named the appellant as one of the assailants of Abdul Mazid. 4. Dr. R. Chalita (PW-9) conducted the post mortem examination on the body of Abdul Mazid. He found one injury on the head and one injury over the left forearm just below the elbow joint. No fracture was however found on any part of the body. The doctor in his post mortem examination report exhibit 4 opined that Abdul Mazid died due to head injury which could be caused by blunt object. 5. During trial, the appellant abjured his guilt and pleaded false implication. The trial court however relying upon the evidence of eye witnesses Md. Fazar Ali (PW-2), Kashida Begum (PW-3) and Sukur Ali (PW-6) convicted and sentenced the appellant as aforesaid. The trial court also relied upon the evidence of Hasmat Ali (PW-1) who had lodged the ejahar against the appellant. 6. Md. Fazar Ali is brother of Md. Abdul Mazid whereas Kashida Begum is his widow. Fazar Ali (PW-2), Kashida Begum (PW-3) and Sukur Ali (PW-6) convicted and sentenced the appellant as aforesaid. The trial court also relied upon the evidence of Hasmat Ali (PW-1) who had lodged the ejahar against the appellant. 6. Md. Fazar Ali is brother of Md. Abdul Mazid whereas Kashida Begum is his widow. Both have testified in one voice that they know the appellant because he lives in the neighbourhood and that they saw him assaulting Abdul Mazid along with his co-accused son Amir Ali with their respective lathi. According to these witnesses, the incident took place after quarrel over damaging of cultivation of Abdul Mazid by the cock/hen of the appellant. Nothing has been brought out in the brief cross-examination of Fazar Ali and Kashida Begum by the appellant to discredit their evidence. Their evidence is supported by Sukur Ali (PW-6). Sukur Ali has testified that he saw the appellant causing injury on the head and hand of Abdul with a bamboo lathi. As seen above, Dr. R. Chaliha in his post mortem examination report has confirmed one head injury and one injury over left forearm just below the elbow joint of deceased Abdul Mazid. 7. Having regard to the evidence available on record, the learned counsel for appellant has not assailed the prosecution story which is well founded and fully proved. We accordingly confirm the finding of the trial court that appellant was the perpetrator of the crime. 8. The learned counsel for appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that appellant had the intention to murder Abdul Mazid and as such the offence will not be under Section 302 of the Indian Penal Code but under Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. The incident admittedly took place immediately after quarrel between Abdul Mazid and the appellant. The quarrel was also over damaging of the cultivation of Abdul Mazid by the cock/hen of the appellant. The appellant therefore in a fit of anger suddenly dealt two lathi blows to Abdul Mazid. Unfortunately, one such blow landed on the head of Abdul Mazid which resulted into his death. No fracture was also found on the head or any part of the body of Abdul Mazid. The appellant therefore in a fit of anger suddenly dealt two lathi blows to Abdul Mazid. Unfortunately, one such blow landed on the head of Abdul Mazid which resulted into his death. No fracture was also found on the head or any part of the body of Abdul Mazid. Thus, it cannot be held that the appellant had any premeditation to kill Abdul Mazid with a lathi. Having regard to the act of appellant we are unable to agree that he had any intention to cause the death of Abdul Mazid. It can however be safely held that he had the knowledge that by causing the injuries with lathi on Abdul Mazid, he would die. 9. Consequently, we set aside the conviction of appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment imposed to him thereunder and instead convict him under Section 304 Part II of the Indian Penal Code and impose a sentence of five years rigorous imprisonment. The sentence of fine of Rs.25,000/- is also reduced to Rs. 3000/- and in default in payment of fine to undergo 3 months rigorous imprisonment. The appellant is in jail. He be released on his undergoing jail sentence awarded by us. With the above modification, the appeal is partly allowed.