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2019 DIGILAW 449 (GAU)

Bibor Ali Seikh v. State of Assam

2019-04-09

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : A.M. Bujorbarua, J. 1. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Mr. A. Ahmed, learned counsel for the appellant and Mr. M. Phukan, learned Addl. P.P. for the State of Assam. We have also heard Mr. N.D. Bhuyan, learned counsel for the informant/respondent No. 2. 2. An ejahar dated 05.12.2004 was lodged by one Hajrat Ali before the In-charge, Paglahat Police Watch Post under Golokganj Police Station stating that on 27.11.2004 at around 8/9 AM, while his younger brothers, namely, Md. Jalaluddin Seikh and Jamaluddin Seikh were ploughing in their land, the accused persons named therein, in connection with a long pending land dispute between the parties and on being ill advised by certain influential persons, suddenly assaulted the two brothers with dao, axe, lathi, spear etc. It was stated that upon hearing the hue and cry, the neighbors and other brothers also arrived at the place of occurrence and saw the accused persons striking on the head of Jalaluddin with lathis. Immediately, his head got fractured and started bleeding and was taken to Dhubri Civil Hospital, where he succumbed to his injuries on 01.12.2004. 3. As there was delay in filing the ejahar, an explanation was also given that the informant was busy in providing treatment to the injured person and thereafter performing to his funeral rites, which resulted in delay. 4. Jamaluddin Sk., who is stated in the ejahar to be present along with the deceased in his deposition as PW-6 had stated that while he and the deceased were ploughing their field, the accused persons, namely, Kurpan, Jaher, Abdul Mazid, Anser Ali, Askar Ali, Bibor Ali, Amir Ali, Ramjan Ali and Josimuddin along with two others came and shouted maro, maro. He further deposed that there was a case relating to land dispute and the witness side had got a decree in their favour. It is deposed that thereafter the accused persons gheraod the PW-6 and the deceased and started to assault and PW-6 faced one blow and thereafter fled away from the place of occurrence. It is deposed that by that time, his elder brother Jalal fell down on the ground and thereafter the neighboring people came and took the injured deceased to the hospital, where he succumbed to his injuries after four days. It is deposed that by that time, his elder brother Jalal fell down on the ground and thereafter the neighboring people came and took the injured deceased to the hospital, where he succumbed to his injuries after four days. The PW-6, in his cross-examination had stated that the police had not recorded his statement in connection with the case and that he also did not disclose the fact before the police during investigation and that he deposed for the first time in the examination-in-chief. Even ignoring that aspect that the PW-6 did not state before police during investigation, but what was stated in the examination- in-chief was that the accused persons named by him had gheraod and assaulted the PW-6 and the deceased, where the PW-6 received one blow and fled away from the place of occurrence and the deceased Jalaluddin fell down on the ground. There is no mention of any weapon nor there is any mention that the injury sustained by the deceased was caused because of any such assault with weapon by the persons named therein. 5. The medical evidence in the postmortem report provides that there was head injury on the occipital region and haemotoma was found in the occipital region of brain and further that right chamber of the heart was full of blood and left chamber was found empty and both the lungs were congested. In his deposition, the doctor (PW-7) states the following injuries: "1. Both the lungs found congested. 2. Right chamber of heart was full of blood and left chamber was found empty. 3. Head injury was found on the occipital region with stitches. 4. Haemotoma was found in the occipital region of brain size 2 cm X 1 cm X 1 cm." 6. We have taken note of the fact that neither in the deposition of the doctor nor in the postmortem report, there was any opinion being expressed that the head injury was caused by any blunt weapon. On the other hand, in the cross examination, the doctor expressed the opinion that the injury may have been caused due to fall on a hard substance. The medical evidence and the evidence of PW-6 indicating that no weapon being used in the assault, in our view are inconformity with each other. 7. On the other hand, in the cross examination, the doctor expressed the opinion that the injury may have been caused due to fall on a hard substance. The medical evidence and the evidence of PW-6 indicating that no weapon being used in the assault, in our view are inconformity with each other. 7. PW-2, also claims to be an eye witness, who happened to pass by the place of occurrence when the incident took place. PW-2 deposes that upon his arrival at the place of occurrence, he saw three persons, namely, Jaher, Kurpan and Jalal engaged themselves in a marpit, where Jaher and Kurpan carried lathi while Jalal was unarmed. He further deposed that Jalal was in possession of the land in question, and that thereafter the other persons came to the place of occurrence and participated in the marpit. The PW-2 specifically deposed that in the marpit, Jalal fell down on the ground and became badly injured. We take note of the deposition of PW-2 that Jalal was badly injured when he fell down rather than he being injured by any of the assault by the accused persons mentioned by the said witness. 8. Further, even if the said witnesses had stated that Jaher and Kurpan were carrying lathis, but medical evidence does not disclose any such injury that may have been caused by a lathi. Further in his statement before police at the time of investigation, PW-2 does not state that the accused persons were carrying any lathi, which was also put across to him in the cross examination. In view of the aspect that PW-2 did not state before police that two of the accused persons Jaher and Kurpan were carrying lathi and secondly the medical evidence showing that no injury was found on the deceased caused by any lathi, we are unable to accept the evidence rendered by PW-2 that the death of the deceased may have been caused by any assault with lathi. Again if we take into account the evidence of PW-2 that Jalal fell down on the ground in the marpit and get badly injured, the same appears to be inconformity with the evidence of PW-6, who also stated that in the assault, Jalal fell down on the ground and further the medical evidence that the injury on the back of the head may have been caused due to fall on a hard substance. 9. In the aforesaid circumstances, the only reliable evidence that is available on record was that there was an assault by the accused Jaher and Kurpan upon the deceased and in course of such assault, the deceased fell down on the ground and got injured. From the aforesaid evidence on record, the conclusion that we can arrive at is that there was an assault by the accused Jaher and Kurpan on the deceased without there being any evidence that the assault took place with any weapon. From the aforesaid evidence, we can also infer that the intention of the accused persons was more to cause hurt on the deceased, rather than anything else. 10. From the nature of the injury suffered by the deceased, we can also say that such injury can be brought within the purview of Section 323 IPC. In view of the above, we convert the conviction of the accused/appellant No. 2, Jahir Ali Sheikh, son of Late Jafar Ali and accused/appellant No. 4, Kurban Ali @ Kurpan Ali, son of Late Garibullah Seikh from Section 302 IPC to Section 323 IPC. In respect of the other accused persons, we do not find any material on record to convict them of any offence and accordingly set aside their conviction and sentence under Section 302 IPC as made by the judgment and order dated 02.06.2016 of the learned Sessions Judge, Dhubri in Sessions Case No. 53/2008. 11. It is stated that the accused/appellant No. 2, Jahir Ali Sheikh and accused/appellant No. 4, Kurban Ali @ Kurpan Ali had been in imprisonment for a period approximately about 4 months. Accordingly, we sentence the said two accused persons for the period of imprisonment already undergone. 12. The appeal stands partly allowed and the bail bond stands discharged. 13. Send down the LCR.