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2019 DIGILAW 475 (GAU)

Md. Paddis Ali v. State of Assam

2019-04-11

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : A.M. Bujor Barua, J. 1. Heard Mr. S.K. Goswami, learned counsel for the appellant. Also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam. 2. An ejahar dated 29.08.2005 was lodged by one Md. Sarfo Ali, son of Late Sayed Ali before the Officer-in-Charge of Barama Police Station stating that on 28.08.2005 at about 11.30 P.M., the sons of Soukat Ali, namely, Paddush Ali, Kandura and Asmat Ali accompanied by their nephew Rubul Ali entered their house and stabbed his elder brother Md. Bakharu Ali in the abdomen with a sharp weapon i.e. dagger. It is stated that the son of his elder brother, Nur Islam was also grievously injured with sharp weapon. 3. It is stated that subsequently the injured Bakharu Ali died while he was taken to the Gauhati Medical College and Hospital, Guwahati as appropriate treatment was not available in the local hospital. The informant, Sarfo Ali deposed as the PW-4 and had reiterated what he had stated in the ejahar, apart from further stating that in what manner the injured was taken for medical treatment. The PW-4 states that he saw the injured Bakharu Ali being taken in a handcart meaning thereby he had not himself witnessed the occurrence. 4. PW-3, Md. Nuruddin Ali stated in his deposition that on the given day of 29th day of August about 1 years ago at about 11.30 P.M., he along with Nur Islam came out from the front of their house and at that time, the accused Rubul Ali and Asmat Ali, flashed a torch and asked them as to who they were. The other person Nurul replied that it was them. Thereafter, Rubul, Asmat and Kandura both armed with lathis rushed towards them. It is stated that Rubul and Kandura assaulted the PW-3, Nuruddin Ali with lathis while Asmat hacked Nur Islam with with a dao. Upon hearing hue and cry, his father Bakharu Ali (deceased) came out of the house and asked them not to pick up any quarrel. It is stated that thereafter Kaddus (Paddush) came running from the other side and stabbed Bakharu Ali in his stomach with a dagger. Upon hearing the hue and cry, the neighbours gathered there and their father Bakharu Ali told them that Asmat had stabbed him with a dagger. 5. It is stated that thereafter Kaddus (Paddush) came running from the other side and stabbed Bakharu Ali in his stomach with a dagger. Upon hearing the hue and cry, the neighbours gathered there and their father Bakharu Ali told them that Asmat had stabbed him with a dagger. 5. PW-2, Nasir Hussain, who arrived at the scene upon hearing the hue and cry saw Bakharu Ali lying in his courtyard. Thereafter the accused was taken to the Barama Police Station and on being asked by the Officer-in-charge Bakharu replied that Paddush had assaulted him with a knife. 6. PW-8, Amila Bibi, who happened to be a neighbor in her deposition stated that upon hearing a commotion from the direction of Bakharus house she woke up and came out of her house and saw Asmat hitting Nur Islam on his head with something. At about the same time she also saw Paddush Ali moving from the back side of the accused persons who were quarelling and stabbed Bakharu Ali in the lower abdomen with a dagger and fled away from the place. When the accused Paddush Ali was running, the sheath of the dagger in his hand touched the hand of the witness and fell down. It is taken note of that the PW-8, happened to be an independent witness and stated in her cross, upon suggestion, that she does not know that on the day of occurrence, when Bakharus son Nuruddin had been apprehended in connection with his illegal activities with one Mahila Begum, a resident of Madhepur and when the relatives of Mahila Begum made her to enter into Bakharus house a quarrel had taken place. 7. We take note of the evidence of the accused Paddush Ali, who had deposed as DW-1, wherein he stated that one Mahila Begum, a girl from Madhepur was brought to the place of occurrence by her brother and other villagers and they took her to the residence of Bakharu to hand her over to Nuruddin, a son of deceased Bakharu, as he was maintaining an illicit relationship with the women and had promised to marry her. It was also deposed that on the date of the incident, Mahila Begum was found in a compromising position with Nuruddin. It was also deposed that on the date of the incident, Mahila Begum was found in a compromising position with Nuruddin. Later on, when Bakharu and her family members had prevented Mahila from entering the house and refused to accept her, a quarrel had taken place between the two groups. 8. We have also gone through the medical evidence of PW-6, Dr. Prabin Chandra Choudhury, who had deposed that he found one stab injury of 5C.M X 2.5C.M in the abdomen of the deceased which has caused 3 punctured wounds in the small intestine, mesentery perforated, vessels severed. In cross, he deposed that the injuries were caused by one strike as the intestines were folded together. It was deposed that if the patient had been shifted to a hospital having better facilities, there was a possibility that the deceased may have survived. The post mortem report is also in conformity with the medical evidence rendered by PW-6. 9. Even if we accept the eye witness version of PW-3 and PW-8 that the accused Paddush Ali had assaulted the deceased with a knife in his abdomen which ultimately resulted in his death as well as the oral dying declaration made by the deceased in front of PW-2, we are confronted with a mitigating circumstance that there was a quarrel between the side of the deceased relating to a women Mahila Begum who according to the side of the accused was having a physical relationship with one of the sons of the deceased and was also caught in a compromising position and in the circumstance when the side of the accused required the side of the deceased to accept the said woman in their house by getting her married to the son of the deceased, namely, Nuruddin, the same was refused resulting in a serious quarrel between the two parties. It is under such circumstances, when the accused Paddush Ali had inflicted the stab wound in the abdomen of the deceased, Bakharu resulting in his death. 10. Taking into consideration, the mitigating circumstances, we are of the view that even if the eye witness account is taken into consideration, the act of the accused would come within the purview of Exception 4 of Section 300 of the IPC thereby resulting in an act of committing an offence being a culpable homicide not amounting to murder. 11. 10. Taking into consideration, the mitigating circumstances, we are of the view that even if the eye witness account is taken into consideration, the act of the accused would come within the purview of Exception 4 of Section 300 of the IPC thereby resulting in an act of committing an offence being a culpable homicide not amounting to murder. 11. We further take note of that there was only a single stab by the accused which was also confimed by the medical evidence and after the occurrence, the accused immediately went away from the place of occurrence without giving any further blow. Accordingly, we convict the accused Paddush Ali@ Kuddus Ali, son of Soukat Ali under Section 304 Part II of the IPC. 12. It has been stated that the accused appellant, Paddush Ali had already undergone an imprisonment of about 6 years. Accordingly, we sentence the accused appellant for the period already undergone under imprisonment and set him at liberty forthwith provided he is not wanted in connection with any other case. 13. Criminal appeal stands partially allowed to the extent indicated hereinabove.