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2016 DIGILAW 996 (GAU)

Md. Kafiluddin Seikh v. State of Assam

2016-11-10

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Md. Kafiluddin Seikh has been convicted for an offence under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victim of the incident was Kader Paramanik, aged 55 years. 3. The prosecution case, in short, is that on 24.5.2011 at about 11 a.m., Kader was working in his paddy field. At that time, the appellant went there and cut a large sheaf of paddy bounded by Kader. Kader naturally offered resistance whereupon the appellant responded by giving a blow on the back on his head with an axe. In the result, Kader fell down. The incident was witnessed by Bharat Chandra Roy (PW-1) and Sonahar Sheikh (PW-2) who were working nearby in their respective fields. The appellant after assaulting Kader left the place of occurrence. Immediately, Nazimuddin Sheikh (PW-3) was informed. He is nephew of Kader. Nazimuddin after ensuring that Kader was sent to hospital, made ejahar exhibit 2 about the incident at Police Station Matia, District Goalpara. In the ejahar, he categorically named the appellant as an assailant of Kader. The appellant surrendered at the Police Station around 10 p.m. and was taken into custody. Kader could not survive the head injury and died in the hospital on the next day. 4. Dr. Nayan Kumar Das (PW-9) conducted the post mortem examination on the dead body of Kader. He found one L-shaped lacerated injury on the left occipital parietal region 6 cm x 2 cm x bone deep. He also found one more lacerated injury 3.5 cm x 1 cm x bone deep over left occipital region of the skull, 6 cm medial to the left ear. The doctor further found depressed comminuted fracture under these injuries as well as one linear fracture. His post mortem examination report in this regard is exhibit 4. The doctor has opined that Kader died due to head injuries which were ante mortem and caused by blunt force impact. 5. Having regard to the evidence of eye witnesses – Bharat Chandra Roy (PW-1) and Sonahar Sheikh (PW-2), 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 alone was the perpetrator of crime. 6. 5. Having regard to the evidence of eye witnesses – Bharat Chandra Roy (PW-1) and Sonahar Sheikh (PW-2), 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 alone was the perpetrator of crime. 6. 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 Kader 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 his submission. The incident took place on a sudden quarrel when the appellant went to the paddy field of Kader where latter was working. There the appellant cut large sheaf of paddy bounded by Kader. And, on resistance offered by Kader, the appellant dealt a blow or two on the head of Kader with an axe. The post mortem examination report however reveals that injuries on the head were caused by blunt force impact, meaning thereby that the appellant did not use the sharp portion of the axe. Or it is also possible that appellant might have caused head injuries with a lathi. The police have admittedly not recovered any weapon of offence from the appellant. Thus, it cannot be held that he had intention to cause the death of Kader. It can, however, be safely held that he had the knowledge that by causing injuries on the head of Kader by the blunt portion of axe or lathi, the latter would die. 7. Consequently, we set aside the conviction of appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment imposed to him there under and instead convict him under Section 304 Part II of the Indian Penal Code and impose a sentence of six years rigorous imprisonment. The sentence of fine is however affirmed. The appeal is partly allowed.