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2017 DIGILAW 937 (GAU)

Tahir Ali @ Sunu v. State of Assam

2017-07-18

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT & ORDER : Paran Kumar Phukan, J. Heard Mr. G.C. Phukan, learned counsel appearing for the appellant and Mr. K. Konwar, learned Additional Public Prosecutor, Assam. 2. In the instant appeal the appellant has assailed the judgment and order dated 27.05.2015 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 123/2009 convicting the accused appellant under section 302 of the IPC and sentencing him to rigorous imprisonment for life and to pay fine of Rs. 10,000/- with a default clause. 3. The appellant is the nephew of the deceased. The prosecution case in a nutshell is that on 24.03.2009 at about 12.30 pm when Jubed Ali the father of the appellant was cutting a tree situated at the backside of the house of the deceased within his compound, the deceased protested and an altercation took place between them. At that moment the accused appellant who is the son of Jubed Ali inflicted several dao blows on the head of the deceased as a result of which he sustained grievous injuries and fell down. The daughter of the deceased who was with him at that time was threatened by the accused that if she raised any hue and cry she would also be killed. Hearing the commotion the elder brother of the deceased who was at that time working in his nearby sugarcane cultivation came to the spot and some other neighbours also assembled and initially they took him to his house and thereafter to Golaghat Civil Hospital where he succumbed to the injuries soon after his arrival in the hospital. 4. The written FIR relating to the occurrence was lodged with the In-Charge, Gounomonigaon Police Outpost soon after the occurrence on the basis of which a case was registered and on completion of investigation charge sheet was submitted against the accused under section 302 of the IPC. 5. During the trial the prosecution examined as many as 12 witnesses including the official witnesses. The accused appellant pleaded innocence in his defence statement under section 313 of the Cr.P.C., 1973 However, he declined to adduce defence evidence. 6. There is no dispute regarding the death of the deceased due to the injuries sustained by him. Autopsy on the dead body was conducted by P.W. 1, Dr. The accused appellant pleaded innocence in his defence statement under section 313 of the Cr.P.C., 1973 However, he declined to adduce defence evidence. 6. There is no dispute regarding the death of the deceased due to the injuries sustained by him. Autopsy on the dead body was conducted by P.W. 1, Dr. Partha Gohain in the Golaghat Civil Hospital and on examination he found the following injuries :- (1) An oblique elliptical cut injury size 6 cm x 8 cm x 4 cm seated over both right and left aspect of parieto-temporal region of scull fracturing underlying bones and exposure of brain matters. (2) Cut injury over right ear with ?rd pinna completely missing. (3) There is presence of bruises over knee of left leg. (4) Membrane - lacerated. (5) Laceration of both right and left parietal and temporal lobe of brain 6 cm X 8 cm X 4 cm. Brain matter contains fluid and clotted blood. 7. The doctor opined that all the injuries were ante mortem in nature and death was caused due to hemorrhage and shock as a result of sharp cut injuries suffered on the brain by the deceased. According to the doctor, the injury No. 1 is sufficient to cause death of a person in the ordinary course of nature. The doctor proved the post mortem report Ext. 1. Though the doctor is silent regarding the nature of weapon used, but from his evidence it is evident that the deceased sustained sharp cut injuries and there is no room for doubt that it was caused by a sharp weapon. Inquest on the dead body was held by P.W. 10 Pradip Kumar Das who was posted as Sub-Divisional Officer, Golaghat and Inquest Report also confirmed that the deceased sustained the above noted injuries. The witnesses examined by the prosecution also noticed the head injuries of the deceased. The evidence of the doctor coupled with the PM report, inquest report and the evidence of the other witnesses confirmed that the death of the deceased was due to the injuries sustained by him on his head which was caused by sharp weapon. 8. Now the pertinent question is who caused the injuries to the deceased which resulted his death. Prosecution in this case is relying heavily on the testimony of P.W. 3 Sajida Begum daughter of the deceased. 8. Now the pertinent question is who caused the injuries to the deceased which resulted his death. Prosecution in this case is relying heavily on the testimony of P.W. 3 Sajida Begum daughter of the deceased. She was with her father at the time of the incident and she accompanied him to the woods. She saw Jubed Ali cutting tree and when her father asked him as to why he had cut the tree, the altercation took place between them. According to her, the accused appellant Tahir Ali came from the backside and inflicted dao blows on the head of her father as a result of which he fell down and thereafter also he gave two more blows on the same portion of the head. She was threatened not to raise any hue and cry. At that moment the elder brother of the deceased came to the place of occurrence and other people also assembled and took her father to his home and thereafter, shifted to Golaghat Civil Hospital. The statement of this witness was recorded under section 164 CrPC, 1973 vide Ext. 4 by the learned Magistrate and her statement is consistent with her evidence given before the court. Defence in cross-examination could not elicit anything of importance from her to discredit her testimony. She categorically stated that the accused appellant inflicted dao blows on the head of her father and even after he fell down, two more blows were given-one on the head and one on the left side of the head. Her evidence also reveals that she did not go to the school on that day and her mother had gone to fetch water and arrived at the spot after the occurrence. She denied the defence suggestion that her father sustained injuries due to scuffle with the father of the appellant. On close scrutiny of her evidence we find her testimony consistent and uniform and she is not only found to be highly reliable and trustworthy but her evidence is also found cogent and convincing and we do not find any reason to disbelieve her testimony. 9. Corroborating the testimony of P.W. 3, her mother P.W. 2 Rejina Begum also testified that at the relevant time she went to fetch water and as soon as she came, she was informed by her daughter that the appellant had caused cut injuries to her father. 9. Corroborating the testimony of P.W. 3, her mother P.W. 2 Rejina Begum also testified that at the relevant time she went to fetch water and as soon as she came, she was informed by her daughter that the appellant had caused cut injuries to her father. She immediately proceeded to the place of occurrence and on the way she claims to have seen the accused with a dao in his hand and his clothes stained with blood. The accused told her that he had finished off her husband and he would now go to the Dergaon Police Station to surrender and left that place. On her arrival at the place of occurrence she found her husband lying on the road with injuries on his head and also found Giyasuddin, the elder brother of her husband, holding her husband and her daughter lying unconscious in the field. When she raised hue and cry nearby people assembled and they took her husband to the Golaghat Civil Hospital in 108 vehicle. Her evidence also reveals that the occurrence took place due to cutting of a tree. Her statement was also recorded under section 164 CrPC, 1973 and found to be consistent with her evidence given before the court in material particulars. She lodged the FIR Ext. 2 soon after the occurrence on the basis of which the police case was registered. 10. The record reveals that the FIR was filed with the In Charge of Sumonigaon Police Outpost on 24.03.2009 at about 6 pm but from the evidence on record it transpires that before filing of the FIR a telephonic information was received by Sumanigaon Police Outpost on the basis of which Sumanigaon Police Outpost GD Entry No. 308 dated 24.03.2009 was made at about 12 noon. The telephonic information was given by one Nurul Rahman, VDP Secretary about the commission of the crime which has been confirmed by Nurul Rahman who has been examined as P.W. 9 as well as by the Investigating Officer (P.W. 12). 11. Having gone through the Ext. 19 the GD Entry No. 308 we find that the same reveals commission of a cognizable offence and it was the first information report given to police soon after the occurrence. 11. Having gone through the Ext. 19 the GD Entry No. 308 we find that the same reveals commission of a cognizable offence and it was the first information report given to police soon after the occurrence. It is also found that the investigation of the case commenced pursuant to the GD Entry No. 308 which was registered on the basis of the telephonic information and as such, the said telephonic information and the GD Entry No. 308 is to be treated as the First Information Report of the case within the meaning of section 154 of the CrPC, 1973. The written FIR Ext. 2 lost its significance in view of the telephonic information earlier given being hit by section 162 of the CrPC, 1973. and can only be treated as a previous statement. 12. We have gone through the relevant GD Entry No. 308 dated 24.03.2009 and it is found that in the said telephonic information the informant had telephonically informed that the deceased was attacked by the accused appellant with a dao causing injuries on his head. The telephonic information was promptly given by the informant and there is nothing to suspect embellishment or afterthought. In the written information also (not treated as FIR), the date, time and manner of commission of the crime has been clearly spelt out, including the name of the accused. Though P.W. 2 has not seen the accused appellant causing injuries to her husband, but she saw the accused appellant with a dao in his hand and at the time of leaving that place he had informed her that he had finished off her husband and he would go to the police station to surrender. The accused made the aforesaid confession immediately after the occurrence and there is no doubt about the voluntariness of the statement. 13. Both P.W. 2 and P.W. 3 were subjected to extensive cross-examination by defence but apart from a few minor contradictions and variations defence could not elicit anything of importance from them and the contradictions are found to be too trivial and insignificant to doubt their veracity. It is well settled proposition that minor variations and contradictions in the evidence of witnesses is the hallmark of the truth of their testimony. It is well settled proposition that minor variations and contradictions in the evidence of witnesses is the hallmark of the truth of their testimony. Minor variations and contradictions always occur in criminal trial but because of minor variations and contradictions the evidence of those witnesses who are otherwise found to be reliable cannot be brushed aside. 14. We have carefully analyzed the evidence of P.W. 2 and P.W. 3 who are the wife and daughter of the deceased respectively on the touchstone of probabilities we have no hesitation to accept their evidence to be truthful and trustworthy. 15. P.W. 4 Smt. Musfida Begum also to some extent lends support to the prosecution. After hearing hue and cry she came to the house of the deceased and saw the deceased lying injured in his courtyard. She came to know from one Sophia Khatun that the accused had hacked the deceased with a dao. It is in her evidence that while she was in the courtyard of her house she saw the accused appellant riding a bicycle by the road in front or her house and she claims to have heard him saying that he had cut Ahidur. However, this witness has been declared hostile by the prosecution as she resiled from her earlier statement with regard to the fact that she had seen the dao in the hand of the accused while riding the bicycle. Her failure to speak about the dao in the hand of the accused appellant would not cause any dent in the prosecution case. What is material to be considered from her evidence is that she saw the accused riding past her house in his bicycle and saying that he had cut Ahidur. This confession of the accused made by him soon after the occurrence cannot be ignored and lends full support to the evidence of P.W. 2 before whom also accused appellant made the similar statement. 16. At the relevant time P.W. 5 Nabajit Hazarika was posted as a Constable in the Dergaon Police Station. He was present in the police station when the accused appellant surrendered with a dao in his hand in the police station at about 1/1.30 pm. 16. At the relevant time P.W. 5 Nabajit Hazarika was posted as a Constable in the Dergaon Police Station. He was present in the police station when the accused appellant surrendered with a dao in his hand in the police station at about 1/1.30 pm. Though the confession of the accused made before P.W. 5 that he had cut his uncle on the head is inadmissible in evidence due to bar imposed by section 25 of the Evidence Act, the post occurrence conduct of the accused appellant surrendering in the police station soon after the occurrence with the weapon of offence cannot be thrown overboard and is admissible under section 8 of the Indian Evidence Act. The dao was seized by Sub-Inspector Suren Kalita vide seizure Ext. 5 in presence of P.W. 5 and it was also identified in the court as Material exhibit by this witness. Defence could not discredit his testimony in cross-examination and in cross-examination also his positive assertion is that the accused appellant was the person who surrendered in the police station with the dao in his hand on that particular day. 17. Another eye witness to the occurrence is P.W. 6 Giyasuddin Ahmed, elder brother of the accused appellant. At about 12 noon he was cutting sugarcane in the sugarcane plantation situated near the place of occurrence. Though he claimed to have seen the accused appellant inflicting dao blows on the head of the deceased, but while adducing evidence in court, he resiled from his earlier version given before police, consequently declared hostile by the prosecution. He stated before the court that while he was in the sugarcane plantation, he heard the scream "Katile O" (I am cut) and hearing the scream he came out and saw his brother Ahidur lying injured under the bamboo grove and he noticed the cut injury on his head and was unable to speak. He also saw P.W. 3, Sajida Begum the daughter of the injured standing near him. He called 108 ambulance and took his brother to the hospital and he was present when police seized the blood stained shirt of the deceased vide Ext. 6. He also saw P.W. 3, Sajida Begum the daughter of the injured standing near him. He called 108 ambulance and took his brother to the hospital and he was present when police seized the blood stained shirt of the deceased vide Ext. 6. Though this witness has been declared hostile by the prosecution, but the learned Sessions Judge accepted his evidence to the extent which corroborated the prosecution version by relying on the judgment of the Apex Court in Balu Sonba Sindhe v. State of Maharashtra reported in AIR 2002 SC 3137 and Kholi Lakhmanbhai Chanabhai v. State of Gujarat reported in AIR 2000 SC 210 . The statement given by P.W. 6 before the Investigating Officer has been brought on record which has been confirmed by the Investigating Officer himself. His presence in the place of occurrence cannot be doubted which has been confirmed by both P.W. 2 and P.W. 3. In view of the proposition of law laid down by the Apex Court, the learned Sessions Judge unhesitatingly accepted his evidence as a corroborative piece of evidence and we do not find any reason to disagree with the view of the learned Sessions Judge. The evidence of P.W. 6 lends full support to the prosecution as an eye witness to the occurrence and even if that portion of his evidence that he saw the accused appellant causing the injuries to the deceased is discarded, then also the other portion of his evidence that after hearing the scream of his brother he came to the spot and saw his brother lying on the ground and also saw P.W. 2 and P.W. 3 in the place of occurrence and that he took the injured to hospital for treatment cannot be disbelieved or rejected. 18. P.W. 7 Jakir Hussain scribed the FIR as per instruction of the informant P.W. 2 and he had no knowledge regarding the incident. P.W. 8 Sahabuddin Ahmed was in the Dergaon Police Station at the relevant time when the accused appellant surrendered in the police station with the dao in his hand. His evidence is to the effect that while he was sitting in the police station, a person came to the police station. As per instruction of police he put his signature in Ext. 5 seizure. His evidence is to the effect that while he was sitting in the police station, a person came to the police station. As per instruction of police he put his signature in Ext. 5 seizure. This witness also has been declared hostile by the prosecution for his resilement from his earlier version given before police but his evidence also goes to show that the accused surrendered in the police station with a dao in his hand which was seized in his presence vide seizure Ext. 5. The confessional part of the statement of the accused is otherwise also inadmissible in evidence as it was made in presence of the police. His evidence lends support to the prosecution case that the accused appellant surrendered in the police station with a dao in his hand. P.W. 9 informed about the incident over telephone to the Sumonigaon Police Outpost. He came to the spot on being informed by his wife that the accused appellant hacked the deceased. He saw Ahidur lying in an injured condition in the courtyard of his house and he claims to have called 108 ambulance and took the deceased to the hospital where he was declared dead. The wearing apparel of the deceased was seized in his presence vide seizure Ext. 6 by police. On the basis of the telephonic information given by P.W. 9 GD Entry No. 308 dated 24.03.2009 by Sumonigaon Police Outpost was registered which has been confirmed by the Investigating Officer P.W. 12. The investigation commenced on the basis of the G.D. Entry made pursuance to the telephonic information and as we have discussed above, this General Entry Diary is to be treated as the First Information Report of the case where name of the accused and the manner in which the crime has been committed has been clearly mentioned. P.W. 10 held inquest on the dead body. He had pointed out the carbon copy of the report which was found with the record while adducing evidence in court which has not been controverted. P.W. 11 Md. Ahmed Hussain also resiled from his earlier version given before police. Though he claimed that he saw the accused moving along the road uttering that he had killed Ahidur but while adducing evidence in court, he deviated from his earlier stand. P.W. 11 Md. Ahmed Hussain also resiled from his earlier version given before police. Though he claimed that he saw the accused moving along the road uttering that he had killed Ahidur but while adducing evidence in court, he deviated from his earlier stand. He claims to have made a phone call to 108 ambulance and in the said ambulance the deceased was taken to the hospital. Because of frequent change of stand we do find him reliable and even if his evidence is discarded that would not be fatal to the prosecution. 19. The cumulative effect of the entire evidence on record as discussed above more particularly the evidence of the eye witnesses P.W. 3 and P.W. 6 which is amply corroborated by the evidence of P.W. 2, P.W. 4, P.W. 5 and P.W. 7 and to some extent by P.W. 8 and P.W. 9 and the extra judicial confession of the appellant made before P.W. 2 and P.W. 4 established beyond doubt that it was the accused appellant who had caused the injuries to the deceased on his head which resulted his death. The evidence of the doctor also fully supports the prosecution and his clear finding is that the death the deceased was due to hemorrhage and shock as a result of the sharp cut injuries sustained by him on his head which was ante-mortem in nature. The post conduct of the accused also lends full support to the prosecution case. 20. Mr. G.C. Phukan, learned counsel appearing on behalf of the accused appellant strenuously contends that from the facts and circumstances of the case and the nature of the injuries sustained it cannot be held with certainty that the accused appellant had the intention to cause the death of the deceased. The offence was committed at the spur of the moment without any pre-meditation and the evidence produced against the accused does not show that he had any motive to cause death of the deceased or have intended to caused such bodily injury which was sufficient in the ordinary course of nature to cause death of the deceased. On the spur of the moment, during the heated exchange of words the accused caused injuries which resulted his death. On the spur of the moment, during the heated exchange of words the accused caused injuries which resulted his death. Therefore, the ingredients of murder as defined under section 300 IPC has not been established against the accused and at best he could be held guilty of culpable homicide not amounting to murder under section 304 IPC. 21. Mr. Phukan relied on the judgment of the Apex Court in the case of Veeran and Ors. v. State of M.P. reported in 2011 AIR SCW 2599 to project that the incident took place due to heated arguments and altercations between the parties and there was no pre-meditation and consequently, he cannot be convicted under section 302 of the IPC. 22. Controverting the submission, Mr. K. Konwar, learned Additional Public Prosecutor contends that in the present case the deceased was unarmed and did not cause any injury to the accused person. Inviting our attention to the evidence he contends that the accused appellant not only gave fatal blows on the head of the deceased with a dao but even after he fell down he gave two more blows ensuring his death. The accused inflicted fatal blows to the deceased who was unarmed and as such Exception 4 of Section 300 IPC cannot be applied to the facts of the present case. 23. Mr. Konwar relied on the judgment of the Apex Court in the case of Kikar Singh v. State of Rajasthan reported in AIR 1993 SC 2426 to contend that the accused appellant was rightly convicted and sentenced to imprisonment for life under section 302 IPC. 24. We have given our anxious consideration to the contentions raised in the Bar. 25. In Kikar Singh (supra) the Apex Court in paragraphs 9 and 10 of the judgment held as follows :- "9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, exception 4 is not attracted and commission must be one of murder punishable under section 302. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, exception 4 is not attracted and commission must be one of murder punishable under section 302. Equally for attracting exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument of manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under exception 4. In Pandurang Narayan Jawalekar v. State of Maharashtra [1979] 1 SCC 132, the facts proved were that the appellant gave a blow on the head of the deceased old man who was advising him not to quarrel. The injury caused to the brain from one end to the other resulted in fracture as could appear from the evidence of the doctor. It would show that the accused must have struck the blow on the head of the deceased with an iron bar with very great force. Accordingly it was held that exception 4 does not apply though there was sudden quarrel and that the fight was not premeditated to cause death. It must be shown that the injury caused is not cruel one. The conviction for offence under section 302 by the High Court reversing the acquittal by trial court was upheld.702 10. If the weapon used or the manner of attack by the assailant is out of all proportion to the offence given that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where a person, during the course of sudden fight, without premeditation and probably in the heat of passion, took undue advantage and acted in a cruel manner in using a deadly weapon there was no ground to hold that his act did not amount to murder. Therefore, if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that he inflicted the blows with the knowledge that they would likely to cause death and he had taken undue advantage. Therefore, if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that he inflicted the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be fatal. He acted cruelly with no justification. By his conduct the appellant denied himself of the benefit of exception 4 to section 300 I.P.C." 26. Applying the above principles to the facts of the present case what we have noticed is that the deceased was unarmed and there is no evidence that he ever made any attempt to assault the accused appellant. Rather the facts and circumstances of the case point out that fatal injuries were caused by the accused appellant on the vital organ of the deceased like the head with a sharp weapon like dao. He inflicted repeated blows on the head of the unarmed man with the knowledge that the blows would likely cause death and he had taken undue advantage. He inflicted more injuries even after the deceased fell down to ensure his death. Under such facts and circumstances, Exception 4 of Section 300 of the IPC cannot be applied. He intentionally inflicted the fatal injuries and therefore, the offence he committed was that of murder. In our opinion the learned trial Judge has rightly convicted him under section 302 IPC which calls for no interference in this appeal. 27. Consequently, the judgment of the trial court stands affirmed. 28. The appeal fails. 29. Send down the LCR forthwith.