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2016 DIGILAW 952 (GAU)

HUSSAIN ALI (MD) v. STATE OF ASSAM

2016-10-26

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. The two appellants i.e. Hussain Ali and Siddique Ali, who are father and son, have been convicted under Section 302/34 of the Indian Penal Code for causing the death of one Isahaque Ali Mandal and sentenced to undergo imprisonment for life with fine and default stipulation. 2. The ejahar (Ext. 5) in the case was lodged by Mustt. Phool Bhanu (PW-3) on 29.12.2005 before the Moinbori Police Station, Barpeta stating that at around 7 A.M. of 29.12.2005, the five accused persons, which includes the appellants herein, armed with lathi, spear, dagger, spade etc. trespassed into their house at Chatala, dragged her husband Isahaque Ali Mandal out of the house on to the road and killed him by beating and stabbing him by daggers, spade etc. Before leaving, the accused persons also threatened that in the near future, they would also kill the informant and her family members. Based on the said ejahar, Baghbor P.S. Case No. 202/2005 was registered under Sections 147/148/448/302/506 of the Indian Penal Code. Investigation of the case was carried out by Ratneswar Haloi (PW-8). Charge sheet which, however, came to be submitted by Safur Ali (PW-5) implicated the appellants for committing offence under Sections 302/34 IPC. The other three accused named in the FIR were not sent up for trial. The case was committed to trial as Sessions Case No. 108/2010 and formal charge under Sections 302/34 IPC was duly framed. The appellants pleaded not guilty and claimed to be tried. 3. To bring home the charge against the appellants, the prosecution examined 8 (eight) witnesses, including the informant, the Medical Officer and the Investigating Officer. The defence did not lead any evidence. After close of evidence of the prosecution witnesses, both the appellants were examined under Section 313 Cr.P.C and were also heard on the quantum of sentence under Section 235(2) Cr.P.C. The stand of the appellants was of total denial and that they had been falsely implicated. 4. Abul Hussain (PW-1), who is related to both the deceased and the appellant no. 1, as well as Anija Khatun (PW-2), being the daughter of the deceased and Phool Bhanu (PW-3) being the wife of the deceased, deposed as eye-witnesses to the incident of 29.12.2005. 4. Abul Hussain (PW-1), who is related to both the deceased and the appellant no. 1, as well as Anija Khatun (PW-2), being the daughter of the deceased and Phool Bhanu (PW-3) being the wife of the deceased, deposed as eye-witnesses to the incident of 29.12.2005. Abul Hussain (PW-1) testified that on the previous morning of 29.12.2005, the appellant Siddique Ali had picked up a quarrel with the deceased regarding some land dispute. Being threatened with dire consequences, the deceased had reported the matter to Abul Hussain in the afternoon of the same day. For the purpose of settling the dispute, Abul Hussain sought the assistance of the Gaonburha i.e. Surman Ali (PW-4) and another Manser Ali. At around 7 A.M. of 29.12.2005, when they were proceeding towards the house of the deceased and having reached a point which was 40/50 meters from the house of the deceased, they heard hue and cry raised by Anija Khatun (PW-2) to the effect that Siddique Ali was about to kill her father. On reaching the house they saw Siddque Ali holding a long dagger in his hand attempting to strike on the head of the deceased Isahaque Ali Mandal. The deceased managed to catch hold of the dagger by both hands but in the meantime Hussain Ali came from behind with a spade and struck Isahaque Ali Mandal between the back of his head and neck with great force. As a result, Isahaque Ali Mandal fell down on the ground whereupon Siddique Ali gave several dagger blows on the right cheek and neck of Isahaque Ali Mandal causing cut injuries. Isahaque Ali Mandal died at the place of occurrence. The wife of the deceased Phool Bhanu (PW-3), who had also witnessed the incident, lodged ejahar before the Police. Upon arrival of the Police at the place of occurrence, the weapon of offence was seized by Ext. 1, being the Seizure List. On cross, Abul Hussain remained consistent with his depositions made in-chief. 5. Anija Khatun (PW-2) deposed that sometime prior to the date of the incident an altercation had taken place between her father Isahaque Ali Mandal and Siddique Ali over a fishing net in the house of Siddique Ali. Her father had placed the matter for settlement before the Village Headmen i.e. Muslem Master, Abul Master (PW-1) and Surman Ali (PW-4), who is the Gaonburha of the village. Her father had placed the matter for settlement before the Village Headmen i.e. Muslem Master, Abul Master (PW-1) and Surman Ali (PW-4), who is the Gaonburha of the village. On the third day next, at around 6.30 A.M. when she was sitting along with her father Isahaque Ali Mandal on the road in front of their house, Siddique Ali appeared with a dagger in his hand and Hussain Ali with a spade. Siddique gave a dagger blow on Isahaque Ali Mandal which was averted by her father by catching hold of the dagger by both hands. Immediately thereafter, Hussain Ali struck on the backside of the neck of her father with the spade in his hand. As a result, her father fell down on the ground whereupon Siddique Ali gave a dagger blow on the right cheek on her father. Hussain Ali again struck her father's right leg with the spade and thereafter both Siddique Ali and Hussain Ali inflicted several dagger and spade blows on the person of her father. PW-2 also deposed that she had tried to resist the appellants from assaulting her father, but in vain. She also deposed that at the time when the appellants were assaulting her father, Abul Hussain (PW-1) had come and witnessed the incident. Her mother also raised hue and cry and had requested the appellants not to assault her father, again in vain. PW-2 also deposed that her father died on the spot for injuries sustained and thereafter her mother lodged ejahar before the Police, who had come to the place of occurrence and had recorded her statement. On cross, PW-2 remained consistent with her depositions in-chief and also stated that the appellants are their next door neighbours. 6. Phool Bhanu (PW-3) deposed that on the date of the incident at around 6.30 A.M., her husband was enjoying sunshine on the road contiguous to their house and at that time she was in her house. Having heard hue and cry raised by her daughter Anija Khatun (PW-2), she came out from her house and saw Siddique Ali attempting to give a dagger blow on the head of her husband Isahaque Ali Mandal, which blow was averted by Isahaque by catching hold of the dagger. Having heard hue and cry raised by her daughter Anija Khatun (PW-2), she came out from her house and saw Siddique Ali attempting to give a dagger blow on the head of her husband Isahaque Ali Mandal, which blow was averted by Isahaque by catching hold of the dagger. Thereafter, Hussain Ali struck on the backside of her husband with a spade over the neck, as a result of which her husband instantaneously fell down on the ground whereupon Siddique Ali gave a dagger blow in the right cheek of her husband, followed by several blows on the leg. She tried her level best to resist the appellants from assaulting her husband but they refused to listen to her. Her husband died on the spot. Phool Bhanu deposed that the incident was also witnessed by Abul Master (PW-1) and the Gaonburha of their village. She along with her cousin had gone to the Police Station and gave information about the incident. The Police had visited the scene of occurrence and she also lodged the ejahar with the Police. The weapons used in the crime had also been seized by the Police. On cross, PW-3 stated that the appellants had collectively wounded her husband fatally with sharp cutting weapons in front of her own eyes. She also stated that Surman Ali, the Gaonburha, came to the place of occurrence immediately after the incident. 7. Surman Ali (PW-4), who is the Gaonburha, is apparently not an eye-witness to the incident. He corroborated the testimony of Abul Hussain (PW-1) to the extent of being approached for settlement of the dispute over the fishing net. In the morning of 29.12.2005, he had proceeded to the house of Abul Hussain (PW-1) to take him to the house of Isahaque Ali Mandal. He came to learn that Abul Hussain had already left and while PW-4 was proceeding to the house of the deceased, he came to know that Isahaque Ali Mandal had already been murdered. At the place of occurrence he saw Abul Hussain and other neighbouring people along with the daughter and wife of the deceased. When Police had arrived at the place of occurrence, one dagger was recovered from the house of Siddique Ali which was seized in his presence. At the place of occurrence he saw Abul Hussain and other neighbouring people along with the daughter and wife of the deceased. When Police had arrived at the place of occurrence, one dagger was recovered from the house of Siddique Ali which was seized in his presence. On cross, he stated that the dagger was recovered from the house of Hussain Ali and in the same breath he stated that he brought the dagger from the house of Siddique in presence of other people. 8. Dr. Suresh Ch. Sarma (PW-6) deposed as the Medical Officer who had conducted the post-mortem examination on the dead body of Isahaque Ali Mandal. He recorded two cut injuries - one on the right temporal region of the scalp extending to the occipital and another over the right leg at the level of the knee, which had almost severed the right leg. According to PW-6, the injuries were ante-mortem in nature. 9. Sahidul Islam (PW-7) was declared hostile by the prosecution and his deposition is to the extent that he saw the dead body of Isahaque Ali Mandal in front of the house on the village path. He also saw cut injuries on the neck and leg of the deceased. 10. Safur Ali (PW-5) deposed that he was working as Officer in-charge of Baghbor Police Station and on 30.12.2005 PW-3 had lodged a written FIR with the Moinbori Outpost which was duly forwarded to the Baghbor Police Station. He stated that investigation of the case had been entrusted to Ratneswar Haloi (PW-8) and on transfer of the In-charge, Moinbori Outpost on 13.07.2008, the Case Diary was handed over to him and having found that the investigation had stood almost complete by Ratneswar Haloi and also having found prima-facie case against the appellants, he submitted Charge sheet against the appellants under Sections 302/34 IPC. Safur Ali also proved and marked the Charge sheet as Ext. 2. 11. Ratneswar Haloi (PW-8) deposed as the Investigating Officer of the case. He started preliminary investigation of the case and also visited the place of occurrence upon First Information being received from PW-3 who had stated that her husband Isahaque Ali Mandal had been killed by Hussain Ali and Siddique Ali by means of a dagger used for slaughtering cows. 11. Ratneswar Haloi (PW-8) deposed as the Investigating Officer of the case. He started preliminary investigation of the case and also visited the place of occurrence upon First Information being received from PW-3 who had stated that her husband Isahaque Ali Mandal had been killed by Hussain Ali and Siddique Ali by means of a dagger used for slaughtering cows. He also stated that he recorded statements of witnesses, prepared sketch map of the place of occurrence, seized one dagger and also conducted Inquest. He had also sent the body of Isahaque Ali Mandal for post-mortem examination and had collected the post-mortem report (Ext. 3). After completion of investigation, he had handed over the Case Diary to the Officer in-charge i.e. Safur Ali (PW-5), who after going through the Case Diary submitted Charge sheet against the appellants under Section 302/34 IPC. On cross, he also stated that the dagger, which had been seized, was brought from the house of the appellants by Surman Ali (PW-4) in his presence. 12. The examination of the appellants under Section 313 CrPC are of total denial and they also declined to adduce defence evidence. 13. A close perusal of the evidence on record manifestly goes to show that the death of Isahaque Ali Mandal is homicidal in nature. The post-mortem examination discloses cut injury over the right temporal extending from the anterior angle of the right eye to the occipital injuring the scalp bones and also brain membrane. The cut injury over the right knee have also almost severed the leg and both the injuries were ante-mortem in nature. According to the Autopsy Surgeon, the injuries sustained by the deceased are sufficient to cause instantaneous death. 14. There can be no dispute to the fact that the death of Isahaque Ali Mandal was homicidal in nature. The point for determination, having regard to the evidence on record, is as to who had caused the homicidal death. In this respect, Abul Hussain (PW-1), Anija Khatun (PW-2) and Phool Bhanu (PW-3) had vividly narrated the incident of 29.12.2005 as eye-witnesses. The evidence tendered by the said eye-witnesses corroborates each other as regards the criminality on the part of Hussain Ali and Siddique Ali. From their testimony, which was subjected to cross-examination, nothing could be elicited by the defence to discredit their evidence. The evidence tendered by the said eye-witnesses corroborates each other as regards the criminality on the part of Hussain Ali and Siddique Ali. From their testimony, which was subjected to cross-examination, nothing could be elicited by the defence to discredit their evidence. Although Surman Ali (PW-4) is not an eye-witness, his evidence lends support to the prosecution case. His evidence confirms the presence of Abul Hussain (PW-1) and of Anija Khatun (PW-2) along with Phool Bhanu (PW-3) at the place and time of occurrence. He also stands as a seizure witness to the dagger recovered from the house of the appellants. 15. Broadly, PW-1, PW-2 and PW-3 being the eye-witnesses, have tendered consistent account of the crime committed by the appellants leading to the death of Isahaque Ali Mandal. On a close perusal, their testimony do not appear to suffer from any infirmity. Rather, their deposition being worthy of credibility, have inspired the confidence of this Court. Their statements and account of injuries inflicted upon Isahaque Ali Mandal also finds support from medical evidence. An overall assessment of evidence clearly goes to establish the common intention of both the appellants in causing the death of Isahaque Ali Mandal. Premeditation, pre-arranged plan on the part of the appellants can be gathered from the circumstances in which the offence was committed and formed the various acts of the appellants. The prosecution has been able to sufficiently bring the case against the appellants within the purview of Section 302/34 IPC. 16. The submission made by Mr. N. Ahmed, Advocate pointing out contradictions in the deposition of PW-1 and as regards the weapons put to use, are submissions that cannot be taken on board to dislodge the case established by the prosecution. The submission of Mr. Ahmed that the deposition of the eye-witnesses are exaggerated versions of the incident is without any basis and inconsistent with the record of the case. 17. For the all the discussions and findings above, we hold that the conviction and sentence imposed upon Hussain Ali and Siddique Ali by the learned Court below do not call for any interference. We affirm the judgment and order dated 30.09.2013 passed in Sessions Case 108/2010. Resultantly, the present appeal stands dismissed.