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2019 DIGILAW 160 (GAU)

MD ASKON ALI v. STATE OF ASSAM

2019-02-04

MIR ALFAZ ALI, SONGKHUPCHUNG SERTO

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. We have heard learned senior counsel Mr. A.M. Bora for the appellant and learned Addl. P.P., Mr. H.K. Sarma for the State/respondent No. 1. 2. This appeal is directed against the judgment and order dated 30-04-2015, passed by learned Addl. Sessions Judge (FTC), Cachar, Silchar, in Sessions Case No. 93/2010. By the said judgment, learned Addl. Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs. 5,000/- with default stipulation. 3. Prosecution case, as unfolded during trial, was that on the issue of molestation of the daughter of Azim Ali (since deceased) by one Saharul, a 'bichar' (village meeting) was held in the house of the father of the victim girl. In course of said village mel, six persons of the accused party, who were named in the FIR, suddenly became furious and started assaulting the son of the informant Mainul Ali Sarkar. All the accused persons named in the FIR, were armed with weapons like dao, lathi etc and assaulted the victim Johur Uddin causing injuries to him. PW 1, father of the deceased, lodged the FIR (Ext. 1), on the basis of which, police registered Sonai P.S. Case No. 58/2008 under Sections 147/148/149/342/325/326 IPC and commenced investigation. Later on, the injured Jahur Uddin died, and as such, Section 302 IPC was added. In course of investigation, the inquest report was prepared by executive magistrate Sri N.K. Deabnath and post mortem examination was conducted by PW 3, Dr. Gunojit Das. 4. Dr. Gunojit Das, who conducted the post mortem examination on the body of the victim, found the following injuries : (i) Incised injury measuring 8 x 1 c.m. on the vertax area of scalp placed parrel of corrnal suture, scalp deep exposing underline bones. Contusion of whole of scalp in the vertex area found on reflection. (ii) Separation of corronal suture. (iii) Sub- arachnoid haemorrhage over whole of left side of brain (left hemisphere) Rest of organ found healthy. The doctor opined, that death was due to coma, resulting from the injuries sustained by the victim on his head, which were ante mortem and homicidal in nature. Approximate time of death was stated to be 16 to 24 hours before the post mortem examination. In crossexamination, the doctor confirmed that there was only one external injury. 5. The doctor opined, that death was due to coma, resulting from the injuries sustained by the victim on his head, which were ante mortem and homicidal in nature. Approximate time of death was stated to be 16 to 24 hours before the post mortem examination. In crossexamination, the doctor confirmed that there was only one external injury. 5. On conclusion of the investigation, police submitted charge-sheet under Sections 147/149/342/323/302 IPC against six accused persons including the appellant, and all of them stood trial. 6. In course of trial, charges were framed u/s 147/323/302/149 IPC against the appellant and other accused persons, to which they pleaded not guilty. Fourteen witnesses were examined by the prosecution, including the official witnesses, in order to establish the charges. The plea of the accused was that of innocence and no defence witness was examined. On appreciation of evidence, learned Addl. Sessions Judge convicted the appellant under Section 302 IPC and awarded sentence as indicated above. However, rest of the accused persons, who faced trial were acquitted by the learned trial court. 7. Out of the fifteen witnesses examined by the prosecution, PW 2, PW 4 and PW 10 were declared hostile. Learned Sessions Judge essentially relying on the oral testimony of PW 1, PW 6, PW 7, PW8 and PW 9 and the doctor recorded the conviction of the appellant and imposed sentence as indicated above. We have scanned the evidence brought on record. 8. Pw 1, the informant, who happens to be an uncle of the deceased, testified, that there was a 'bichar' (village meeting) to resolve the issue arising out of the alleged outraging of modesty of the daughter of Azim by one Saharul. Hearing hue and cry at the place of occurrence, he went there and noticed that Azim Ali, Sarbat, Robil Hussain, Tobil Hussain, Bhutto Mia, Mayazul Ali were assaulting Johur Uddin (victim) with lathi. At that point of time, the accused Askon Ali also came there and dealt a blow to Johur with a dao. It was elicited in his cross-examination, that the incident continued for about half an hour and many people assembled there and he (PW 1) tried to persuade them not to fight. 9. Pw 6 is the father of the deceased. According to him, deceased Johur Uddin came out for going to his shop. It was elicited in his cross-examination, that the incident continued for about half an hour and many people assembled there and he (PW 1) tried to persuade them not to fight. 9. Pw 6 is the father of the deceased. According to him, deceased Johur Uddin came out for going to his shop. After sometime, hearing commotion, he went out of the house and found that Bhuttu, Samjul, Robil and Jobil were assaulting the victim. He tried to intervene and at that point of time, the appellant Askon Ali came with a dao and dealt a blow on the head of Johur Uddin. When he tried to save him, the accused Sarbhat Ali hit on his head and elbow. 10. Close on the heels of the evidence of PW 1 and PW 6, the PW 7 Sams Uddin deposed, that hearing hue and cry, he came out and found that accused Robil, Jobil, Butto and Samajul were assaulting Johur Uddin (victim) with a lathi and the accused Askon hit him on his head with a dao. PW 8 also stated in the same tune, that accused Sarafat Ali, Ajim Uddin, Bhutto, Samajul and others chased the victim and assaulted him. PW 8 further stated, that he saw the accused Askon giving a dao blow on the head of Johur. PW 9 stated, that hearing hulla, he came out and noticed the accused Askon hitting the victim with a dao. The oral testimony of all the vital witnesses, i.e., PW 1, PW 6, PW 7, PW 8 and PW 9 remained unshaken. Thus, the consistent evidence of all these five prosecution witnesses crystallizes that the accused Askon assaulted the victim Johur Uddin with a dao and thereby caused injury on his head, which ultimately led to his death. 11. The evidence adduced by the prosecution that the accused Askon Ali inflicted injury to the victim on his head with a dao, which led to his death, has not been assailed by the learned counsel for the appellant. However, the contention raised by the learned senior counsel, Mr. Bora is that the accused did not have any pre-meditation or intention to cause death of the victim. However, the contention raised by the learned senior counsel, Mr. Bora is that the accused did not have any pre-meditation or intention to cause death of the victim. In course of fighting between the two groups, which took place at the 'bichar', the accused suddenly hit the victim at the spur of the moment, which caused his death, and as such, in absence of intention to cause death or any pre-meditation, the accused could not have been held liable for the offence of murder under Section 302 IPC, or at best, the accused could be convicted for the offence of culpable homicide not amounting to murder under Section 304 Part-II IPC, submits Mr. Bora. Thus, the prosecution case, that the accused/appellant inflicted the fatal injury to the victim causing his death and he was the perpetrator of the crime, is not in dispute in the instant case. The only question, in view of the contention raised by the learned counsel, remains to be examined is, whether for the act committed by the accused, he will be liable for committing the offence of murder or culpable homicide not amounting to murder. 12. It is in the evidence of the prosecution witnesses, that there was a village 'mel' in the house of Azim Uddin (since deceased) and in course of such 'mel', there was fight between the two groups and initially some other persons, who were named in the FIR, assaulted the victim and in course of such fight, the accused also dealt a blow on the head of the victim with dao, which he was carrying with him. It was also in the evidence of PW 1, that the fight between the two groups continued for about half an hour and he tried to dissuade them from fighting. Thus admittedly, as revealed from the evidence of PW 1, PW 6, PW 7 and PW 8, initially it was not the accused, who assaulted the victim, and it was only in course of the scuffle, the appellant came and dealt a blow with the dao. Evidently, the accused did not attempt a second blow to the victim. There was also no evidence on record to show, that accused was in any suspicious manner or tried to hide the dao which he was carrying with him, or he took any undue advantage of the situation and gave the blows to the victim. Evidently, the accused did not attempt a second blow to the victim. There was also no evidence on record to show, that accused was in any suspicious manner or tried to hide the dao which he was carrying with him, or he took any undue advantage of the situation and gave the blows to the victim. A dao, though, is an instrument used for cutting, the villagers usually used to carry dao, for various household purposes. Therefore, carrying a dao itself cannot be taken as an exception nor any culpable intention can be attributed to the appellant. 13. What therefore, crystallizes from the evidence brought on record is that there was a village 'mel' and mutual fight took place between the two groups in the village meeting and in course of such fight, the appellant hit the victim with a dao at the spur of the moment. Incidentally the dao blow given by the appellant became fatal leading to the death of the victim. From the above facts, it is difficult to hold that the accused had any intention or premediation to cause death of the victim. Had the accused harboured any intention to cause death, he would not have given only a single blow, reason being that the victim did not die instantaneously. He succumbed to the injuries later on. Be that as it may, though the intention to cause death could not be attributed to the accused on the facts of the case, having regard to the gravity of the injury and the weapon used by the accused, in our considered opinion, intention of the accused to cause such injury as is likely to cause death cannot be ruled out. When there was no intention or pre-meditation to cause death and the injury was inflicted at the spur of the moment in course of mutual fight, the accused/appellant could not have been convicted u/s 302 IPC, inasmuch as, the evidence, as discussed above, clearly brings the act of the appellant within the sweep of Exception IV i.e., culpable homicide not amounting to murder. Therefore, we set aside the conviction and sentence of the appellant u/s 302 IPC, instead, we convict him u/s under Section 304 Part-I IPC. 14. Having regard to the facts and circumstances of the case and the gravity of the offence, the accused/appellant is sentenced to rigorous imprisonment for 10 (ten) years. Therefore, we set aside the conviction and sentence of the appellant u/s 302 IPC, instead, we convict him u/s under Section 304 Part-I IPC. 14. Having regard to the facts and circumstances of the case and the gravity of the offence, the accused/appellant is sentenced to rigorous imprisonment for 10 (ten) years. We do not interfere with the sentence of fine of Rs. 5,000/- with default sentence of imprisonment as awarded by the learned Addl. Sessions Judge. The period undergone by the appellant in jail during investigation, trial and thereafter, shall stand set off against the substantive sentence. 15. The appeal stands partly allowed. 16. Send back the LCRs along with a copy of this judgment.