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2016 DIGILAW 816 (GAU)

Md. Azizur Rahman v. State of Assam

2016-08-30

AJIT SINGH, N.CHAUDHURY

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JUDGMENT & ORDER : N. Chaudhury, J. Appellant Azizur Rahman was convicted under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.5000/-, in default, to suffer simple imprisonment for three months by learned Sessions Judge, Dhubri, vide judgment and order dated 20.12.2012 in Sessions Case No.120/2006. By the same judgment and order two other co-accused persons, namely, Abdul Baten and Abdul Rohim were convicted under Section 323 of the Indian Penal Code and they were sentenced to pay a fine of Rs.1000/- each, in default, to suffer simple imprisonment for 15 days each. While the two co-accused persons Abdul Baten and Abdul Rohim have not challenged the judgment and order dated 20.12.2012, accused Azizur Rahman has preferred this appeal. 2. The prosecution story is that on 15.06.2005 three mediators were sent to the house of accused Azizur Rahman Moulabi with marriage proposal of daughter of the said accused with the son of the complainant. These three mediators were tied up at their hands and feet with iron chains. Hearing about confinement of the mediators the informant along with his 4/5 brothers went to the house of the accused Azizur Rahman Moulabi and there was altercation. The accused persons in a group assaulted them. In the result Samsul Bari, younger brother of the complainant, died on way to hospital and his elder brother Jamer Ali and nephew Muslim Ali also sustained grievous injuries. Allegations were levelled against as many as 11 accused persons. Upon receipt of the ejahar Mankachar Police Station Case No.154/2005 under Sections 147, 148, 149, 342, 326, 302 of the Indian Penal Code was registered. Police held inquest over the dead body, sent it for post mortem examination, recorded statements of the witnesses and ultimately submitted charge-sheet on 31.07.2005 against all the accused persons under Sections 147, 148, 149, 342, 326, 302 of the Indian Penal Code. The learned Chief Judicial Magistrate, Dhubri, by his order dated 14.09.2006 committed the case to the Court of Sessions and thereupon Sessions Case No.120/2006 was registered. The learned Sessions Judge framed charges under Sections 342, 302, 323 read with Section 149 of the Indian Penal Code against all the accused persons. The charges were read over to the accused persons whereupon they pleaded not guilty and claimed to be tried. 3. The learned Sessions Judge framed charges under Sections 342, 302, 323 read with Section 149 of the Indian Penal Code against all the accused persons. The charges were read over to the accused persons whereupon they pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined 13 witnesses including two medical officers and one investigating officer. The accused persons were duly examined under Section 313 of the Code of Criminal Procedure. Upon hearing the learned counsel for the parties and on perusal of the evidence on record the learned Sessions Judge passed the impugned judgment and order dated 20.12.2012 whereby accused Azizur Rahman was convicted under Section 302 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for life along with a fine of Rs.5,000/-, in default, to suffer simple imprisonment for three months. Accused Abdul Baten and Abdul Rohim were found guilty of committing offence under Section 323 of the Indian Penal Code and accordingly they were sentenced to pay a fine of Rs.1000/- each, in default, to suffer simple imprisonment for fifteen days each. The present appeal has been preferred by accused Azizur Rahman challenging his conviction under Section 302 of the Indian Penal Code. 4. We have heard Mr. A. K. Bhattacharyya, learned senior counsel assisted by Mr. A. K. Choudhury, learned counsel for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, for the respondent. We have also perused the evidence available on record. 5. Mr. A. K. Bhattacharyya, learned senior counsel, pointed out that the depositions of the witnesses have been incorrectly recorded and there are innumerable mistakes therein. According to him, these mistakes have given rise to a doubt about the identity of accused Azizur Rahman. He argued that the appellant has been described as Azizur Rahman Moulabi in the F.I.R. Charge has been framed against him by describing as Azizur Rahman but the prosecution witnesses went on differing on recital of name of the accused. PW 1 described him as Azizar Moulan or Azizur Moulani. PW 4 described him as Azizul Maulavi. PW 6 referred to Aziza Moulavi and also as Azizul. He was also described as Aaizan Moulavi. Thus, describing the accused in various names without any consistency has given rise to serious doubt about identity of the accused and so the conviction is liable to be set aside. 6. Ms. PW 4 described him as Azizul Maulavi. PW 6 referred to Aziza Moulavi and also as Azizul. He was also described as Aaizan Moulavi. Thus, describing the accused in various names without any consistency has given rise to serious doubt about identity of the accused and so the conviction is liable to be set aside. 6. Ms. S. Jahan, learned Additional Public Prosecutor, on the other hand, submits that referring the name of the accused Azizur Rahman with variations are there but if the depositions of each of the witnesses are considered in entirety it cannot be said that there is any confusion as to identity of accused Azizur Rahman. Referring to the prosecution story she argued that the informant sent three mediators to the house of the accused No.1 with a proposal for marriage of Maherjan, the daughter of the accused Azizur Rahman with Anarul, the son of the complainant. Accused Azizur Rahman confined the three mediators and tied them with iron chains at their hands and feet. The complainant and his five brothers went to enquire about such behaviour of the accused person when he became furious and assaulted them. This is how younger brother of the complainant was stabbed by Azizur Rahman leading to his death on way to hospital whereas two other persons, viz. Jamir Ali and Muslim Ali received grievous injuries. Whole dispute was in regard to marriage proposal with Meherban alias Meherjan, the daughter of Azizur Rahman and so the basic facts deposed by all the witnesses irresistively point to the undisputed identity of Azizur Rahman. This Azizur Rahman was examined under Section 313 Cr.P.C. and in his reply thereto he affixed his signature as Azizur Rahman. During the course of the trial or at the time of his examination under Section 313 Cr.P.C. or at the time of cross-examination of the prosecution witnesses, no such doubt was raised as to identity of accused Azizur Rahman and so it is too late in the day to raise the objection at the appellate stage, the learned Additional Public Prosecutor argued. 7. To understand these submissions of the learned counsel we have gone through the evidence of all the witnesses, more particularly the eye-witnesses who are PW 4, PW 6 and PW 8. PW 4 stated on oath that at 8.00/8.30 p.m. a proposal was made to Azizul Maulavi for marriage of his daughter. 7. To understand these submissions of the learned counsel we have gone through the evidence of all the witnesses, more particularly the eye-witnesses who are PW 4, PW 6 and PW 8. PW 4 stated on oath that at 8.00/8.30 p.m. a proposal was made to Azizul Maulavi for marriage of his daughter. Abdul Gani and Gaffar were two of the mediators but as they did not return others went there to find that Gani and Gaffar were tied with chains at their hands. Samsul Bari, the younger brother of the complainant, raised objection whereupon Aizul Maulavi straightway stabbed him in the belly with a dagger. Immediately thereafter he stated that it was pointed end of an iron rod. At the same time, Gulzar struck Zamer Ali on his head with ‘sulpi’. He also sustained injuries on his hand and head. The rest of the accused persons also assaulted Samsul Bari. Thus, it would appear from the deposition of PW 4 that the dispute arose in regard to marriage proposal of Azizul or Azizur’s daughter. There was tying up of two mediators and it was followed by assault on Samsul Bari, Zamer Ali, Muslim Ali and others. Apparently Muslim Ali being one of the injured persons in the incident his presence at the place of occurrence cannot be denied and he claimed to have seen Aizul Maulavi, the father of the proposed bride, in inflicting stab injury on Samsul Bari. 8. PW 6, Md. Noor Mahammad, is yet another eye-witness. According to him, the incident took place on the night of 15.06.2005. At around 7/7.30 p.m. of that day Md. Abdul Gani and Gaffar Ali went to the house of Aziza Moulavi with the proposal of settling the marriage between the latter’s daughter and Noor Islam’s son Anarul Islam. Since the mediators did not return they decided to go there and accordingly he along with Zamer Ali, Samsul Bari, Muslim Ali went to the house of accused. On their arrival to Azizal Moulavi’s house they found Gaffar and Abdul Gani were tied up with iron chains. Samsul Bari told that a Moulavi should not have behaved in that manner. Immediately after he uttered these words Azizul abused him with filthy language and stabbed in the left side of his abdomen with an iron ‘sulpi’. On their arrival to Azizal Moulavi’s house they found Gaffar and Abdul Gani were tied up with iron chains. Samsul Bari told that a Moulavi should not have behaved in that manner. Immediately after he uttered these words Azizul abused him with filthy language and stabbed in the left side of his abdomen with an iron ‘sulpi’. This accused as well as other accused persons assaulted Samsul Bari and Zamer Ali with iron rods and wooden weapons. Samsul fell down on the ground and then Muslim and the PW 6 carried Samsul on their shoulders. Samsul and Zamer were taken to Gajarikandi P.H.C. in a handcart but Samsul died and his dead body was brought back home. From the deposition of this witness it appears that the crux of the dispute was about marriage proposal of Aziza Moulavi alias Azizul Moulavi’s daughter. This Azizul Moulavi not only tied Abdul Gaffar and Abdul Gani but also inflicted stab injury in the abdomen of Samsul Bari leading to his death. By whatever name he may be described fact remains that marriage proposal was given for the daughter of this accused person and from there the dispute arose. The father of the daughter whether he is Azizul or Azizur or Aziza Moulavi stabbed Samsul Bari causing his death. PW 6 and PW 2, therefore, have implicated Azizur Rahman against whom charges were framed. 9. PW 7, Abdul Gofur, is also an eye-witness. He along with Abdul Gani went to the house of the accused with marriage proposal and he was tied. He saw Azizur Rahman inflicting stab injury on Samsul Bari. 10. PW 8, Amirul Islam, is the informant. He sent Gaffar Ali and Abdul Gani as mediators for marriage. They wanted daughter of Azizur Rahiman for Anarul Islam. The mediators were tied up in the house of Azizur. Thereafter Amirul and others went there whereupon Azizur stabbed Samsul in the marpit with a surpi like dagger that was sharp on both sides. Zamer sustained injuries on his head and Muslem sustained injuries in his hand. Rest of the accused persons trampled them. Samsul Bari was declared dead once he was taken to Gazarikandi hospital. 11. These three witnesses have seen the occurrence with their own eyes. All these three eye-witnesses spoke in the same tone that they sent three emissaries with marriage proposal for the daughter of accused Azizur. Rest of the accused persons trampled them. Samsul Bari was declared dead once he was taken to Gazarikandi hospital. 11. These three witnesses have seen the occurrence with their own eyes. All these three eye-witnesses spoke in the same tone that they sent three emissaries with marriage proposal for the daughter of accused Azizur. They are village people. They pronounced the name in their own fashion and the learned Sessions Judge recorded the names as per their pronouncements. May be they could not properly pronounce the name of accused Azizur Rahman but all of them were firm on facts. They claimed that this accused has a daughter called Meherjan or Meherban. Complainant wanted to get this daughter of accused for marriage with his son Anarul for which three mediators were sent. The marriage proposal ultimately turned out to be quarrel and marpit leading to loss of at least one life. All of them disclosed that the person whose daughter they proposed for marriage with Anarul caused stab injuries on the person of Samsul Bari leading to his death. 12. The medical evidence discloses that there are piercing injuries on the person of the deceased. Dr. Sashidhar Deka, PW 10, held post mortem over the dead body. He found a penetrating wound present over the right arm near shoulder joint. It pierced through skin, muscle and blood vessel and was about 1 ½ inches deep. Another wound was also penetrating in nature which was located on the left side of axillary line over 4th intercoastal space which was one inch in diameter and it pierced upto to left ventricle damaging the heart and pericardium, left side of lung was having blood clot. In his opinion the injuries were ante mortem in nature and death was due to shock and haemorrhage as a result of the injuries. What is apparent from this medical evidence is that there was piercing injury on the person of Samsul Bari due to which his ventricle of the heart was penetrated resulting in haemorrhage. He died because of this injury. All the three eye-witnesses specifically stated that it is this accused Azizur who had caused this injury over Samsul Bari after he had challenged the action of the accused in tying up the mediators of the marriage. 13. He died because of this injury. All the three eye-witnesses specifically stated that it is this accused Azizur who had caused this injury over Samsul Bari after he had challenged the action of the accused in tying up the mediators of the marriage. 13. From the trend of cross-examinations subjected to the prosecution witnesses it appears that the defence wanted to describe the victim as perpetrator of dacoity. There was also a cross case with respect to some incident wherein they alleged that the victims of this case wanted to kidnap the daughter of the accused Azizur but for which scuffling followed. Having considered the evidence available on record in entirety it appears that the informant and his relatives wanted the daughter of accused Azizur for marriage with Anarul which accused Azizur did not approve. Defence is of the opinion that the victims of the present case really wanted to forcefully take away the daughter of the accused Azizur and that is why there was a marpit between the parties. From the evidence led by the prosecution and the cross-examination done by the defence one thing is clear that Azizur did not harm the three mediators who went with peaceful proposal for marriage. They were tied up with chains. Had Azizur any intention to commit murder he could have caused bodily harm to any of these mediators which he did not. Physical injuries were caused only after Samsul Bari, Zamer Ali, Muslem Ali, Amirul and others came and challenged the action of Azizur Rahman. He became furious and caused injury on the person of Samsul Bari. It is a matter of common perception that if there is apprehension of forceful kidnapping or abduction of the daughter of a person he will definitely resist and exert force from his end. It is possible that Azizur Rahman reacted because of such provocation and he inflicted injury on Samsul Bari. The other inmates of the house might have also assaulted whoever came in front. Under such circumstances, there is sudden provocation triggering anger of the accused. Accused Azizur acted on sudden provocation because of the challenge made by Samsul Bari and since the prestige of his daughter is concerned he could not resist and inflicted injuries on Samsul Bari which became so forceful that Samsul Bari died. Under such circumstances, there is sudden provocation triggering anger of the accused. Accused Azizur acted on sudden provocation because of the challenge made by Samsul Bari and since the prestige of his daughter is concerned he could not resist and inflicted injuries on Samsul Bari which became so forceful that Samsul Bari died. Considering the evidence in entirety, we are of the view that accused Azizur Rahman is not guilty of offence under Section 302 of the Indian Penal Code but he is guilty of committing offence under Section 304 Part-I of the Indian Penal Code. He is a father and wanted to protect his daughter from being kidnapped or harassed and so it is a fit case for imposing lesser punishment. We are of the considered view that a sentence of seven years rigorous imprisonment would be sufficient in view of the peculiar facts and circumstances of the case. 14. The appeal stands partly allowed. The conviction of the appellant under Section 302 of the Indian Penal Code is hereby set aside and the same is converted into 304 Part-I of the Indian Penal Code. The sentence is modified to seven years rigorous imprisonment with fine of Rs.1000/-, in default, to suffer simple imprisonment for one month more. Send down the records.