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2019 DIGILAW 788 (GAU)

Md Abdul Azid v. State of Assam

2019-06-25

ACHINTYA MALLA BUJOR BARUA, SONGKHUPCHUNG SERTO

body2019
JUDGMENT : S. Serto, J. Heard Ms. S.K. Nargis, learned counsel appearing for the ten appellants, Ms. B. Bhuyan, learned Additional Public Prosecutor appearing for the State of Assam and Mr. T. Islam, learned counsel appearing for the respondent No.2. 2. This is an appeal directed against the judgment and sentence order dated 24.08.2015 passed by the learned Sessions Judge, Morigaon in Sessions Case No.63/2013, wherein the appellants were held guilty of having committed the offences punishable under Sections 147, 148, 323 and 302 IPC read with Section 149 of the same code and sentenced to various terms of imprisonment and a fine of Rs. 5000/- each and in case of default thereof to a further imprisonment of six months each. 3. The brief facts of the case as submitted by the learned counsels and as we find in the case record are as follows:- On 29.03.2008 at 4.30 p.m. Mikirbhata Police Station received an ejahar lodged by one Nizam Uddin which stated that at about 1.00 p.m. of the same day, all the accused persons came to the Bodo paddy field of Abdul Mazid (the deceased victim) with lethal weapons like dagger, Naga dao and sword and gheraod him and thereafter assaulted him with the weapons in their hands causing grievous injuries to his body which resulted in his death later in the day at Morigaon hospital. It was also stated that his uncle Miraj Ali and aunty Ajufa Khatun, who came to rescue the victim were also assaulted by the accused persons causing thereby grievous injuries on their bodies. 4. On receipt of the ejahar, Mikirbhata Police Station registered a case under Sections 147/148/149/447/326/302 IPC. After the investigation was completed, the Investigating Officer submitted the charge-sheet and the learned Sessions Judge framed the following charges against 11 accused including the appellants herein. The charges framed by the learned Sessions Judge are reproduced herein below:- "Firstly, that you all on or about 29 th day of March, 2008 at about 1 p.m. at Kalikajari under Mikirbheta P.S. in the district of Morigaon formed an unlawful assembly and in prosecution of the common object of the said assembly committing an offence of rioting. And thereby committed offence punishable under Section 147 of the Indian Penal Code, and within my cognizance. And thereby committed offence punishable under Section 147 of the Indian Penal Code, and within my cognizance. Secondly :- You all on the same day, time & place were being a member of an unlawful assembly armed with deadly weapon in prosecution of the common object of that assembly to commit murder of Abdul Mozit with the help of the said weapon. And hereby committed offence punishable under Section 148 of the Indian Penal Code, and within my cognizance. Thirdly :- You all on the same day, time & place were a member of an unlawful assembly and being the member of that assembly committed the offence of murder of Abdul Mozit and with your common intention were also a member of such assembly at the time of committing of that offence. And thereby committed an offence punishable under Section 149 of the Indian Penal Code, and within my cognizance. Fourthly : You all on the same day, time & place have committed criminal trespass by entering into the land of Abdul Mozit having Bodo Cultivation with intent to commit an offence or to intimidate or insult or annoy Abdul Mozit. And thereby committed an offence punishable under Section 447 of the Indian Penal Code, and within my cognizance. Fifthly : You all on the same day, time and place have voluntarily caused grievous hurt to Abdul Mozit, Md. Miraj Ali and Musstt. Ajufa Khatun. And thereby committed an offence punishable under Section 323 of the Indian Penal Code, and within my cognizance. Sixthly : You all on the same day, time and place have voluntarily caused hurt to Abdul Mozit, Md. Miraj Ali and Musstt. Ajufa Khatun, father, uncle and aunt of the informant. And thereby committed and offence punishable under Section 323 of the Indian Penal Code, and within my cognizance. Seventhly :- You all on the same day, time & place in prosecution of common object committed murder intentionally causing the death of Abdul Mozit by assaulting him with deadly weapons. And thereby committed and offence punishable under Section 302 if the Indian Penal Code, and within my cognizance." 5. The prosecution examined as many as 14 witnesses. However, the defence did not produce any witness. It may be mentioned here that out of the 12 named accused, two of them Md. Alaluddin and Arifa Khatun absconded. Therefore, they were declared absconders. The prosecution examined as many as 14 witnesses. However, the defence did not produce any witness. It may be mentioned here that out of the 12 named accused, two of them Md. Alaluddin and Arifa Khatun absconded. Therefore, they were declared absconders. Further it may also be stated that two other accused namely Nazimul Hoque and Sultan Ali were found to be juveniles. Therefore, they were directed to be tried under the relevant law. 6. The learned Sessions Judge after having carefully examined the evidence available on record and after having given the chance of being heard, came to the finding that out of the 11 charge-sheeted accused persons, 10 of them excluding Jamir Ali, the 11th accused are guilty of having committed the offences charged against them and accordingly convicted them and sentenced them to imprisonment and fine. The operative portion of the judgment and the sentence order are reproduced here below:- "In this case the prosecution claimed that the deceased along with his wife and son (FW-2) while working in their paddy field then the accused persons came with deadly weapon to assault them and they formed an unlawful assembly and this fact of the prosecution is supported by the all the material witnesses and thus, there is no discrepancies and their evidence has a ring truth, cogent, convincing and reliable that all the accused caused bodily injury on the deceased and as a result of such injury he died. The contradiction made by the defence that the deceased died due to injury sustained, when he tried to start the water pump. But from the evidence on record, it is found that the said water pump was located in the land of Hasen Ali and it is used for watering into the paddy field, but the informant side denied this fact and there is no cogent plea in the evidence on record to rebut the prosecution fact on the matter of entering into the paddy field of Abdul Mazid and gharaoed them by all the accused persons and all the accused persons assaulted Abdul Mazid, his wife and others. It is also found from the evidence on record that there was no fatal blow on the vital part on the body of the deceased, but fact remains that there is cut mark on right leg, skin and muscle deep, cut mark over right knee size 2 cm (muscle deep), cut mark in right palm reason of hand size 7 cm muscle deep and penetrating wound on left leg in four sites, two internal and two lateral, which result into the profuse loss of blood. The deceased was at first taken to Bhurbandha hospital, but in that hospital facilities were not available, so, the injured were brought Morigaon Civil Hospital, where injured Abdul Mazid died. So, from the evidence on record, it surfaced that all the accused persons were involved in the incident except accused Jamir Ali and they armed with deadly weapon gharaoed the victim, his wife and his son, his brother Miraj Ali and Ajufa Khatun, the wife of Miraj Ali and assaulted Abdul Mazid and caused serious injury by means of sharp cutting weapons. Prosecution has alleged that material witness in this case as PW-3, PW-4 and PW-7 have suffered grievous injury, but failed to prove as doctor who attended them failed to frame opinion as regard nature of the injury, though he advised them for CT scan and X-Ray of the said injuries. However, facts remains al those witnesses suffered injury and it may be covered under the provision of U/s 323 IPC. Having found no evidence against Jamir Ali, he is acquitted from the liability of the offence alleged upon him and set at liberty and other accused are found guilty for committing offences punishable u/s 147/148/323/302 IPC, read with Section 149 of IPC. As the prosecution has proved the case against all those accused persons beyond all reasonable doubt and accordingly they are convicted. SENTENCE Heard all the convict accused on the point of sentence. Their statement is recorded separately. They all plead mercy. I have considered their pleas in the back drop of the factual aspects of this case and I have found that there surfaced no mitigating circumstance having impact on imposing sentence in lenient manner. They all in a body came to the spot armed with various lethal weapons and mounted assault on the deceased, who was un-armed and defenceless without affording any escape route. They all in a body came to the spot armed with various lethal weapons and mounted assault on the deceased, who was un-armed and defenceless without affording any escape route. Accordingly, all the afore-named convicted accused are hereby sentenced to S.I for 1(one) year each U/s 147 IPC, read with Section 149 IPC and another 1(one) year each U/s 148 IPC, read with Section 149 IPC and to undergo S.I for 6(six) months each, U/s 323 IPC, read with Section 149 IPC and they on being convicted U/s 302 IPC, read with Section 149 IPC are sentenced to R.I for life with a fine of Rs.5000/- each, in default to suffer R.I for 6(six) months each. All the sentences are run concurrently." 7. Being aggrieved by the impugned judgment and the sentence order passed by the learned Sessions Judge, Morigaon, the 10 appellants are before us. After having heard both the parties at length, the learned counsel appearing for both the parties admitted that the incident took place and the victim Abdul Mozid died due to the injuries. The only difference in the submissions of the parties is that; while the learned counsel for the appellants submitted that as per the evidence available specially that of the evidence given by the doctor, who was examined as PW-1, it is evident that there was no intention on the part of the appellants to cause death of the victim Abdul Mazid, therefore, they could not have been held guilty of the offence punishable under Section 302 IPC, but at the most, they could have been held guilty of the offence punishable under Section 304 Part-II IPC, the submission of the learned Additional Public Prosecutor appearing for the State of Assam and Mr. T. Islam, learned counsel appearing for the respondent No.2 on the other hand, is that by looking at the nature of the injuries and parts of the body where the injuries were inflicted, it is a fit case for conviction under Section 326 IPC. 8. In view of the above submissions of the learned counsels representing the parties, though we have scanned through the evidence available in the record, we do not find it necessary to reproduce all the evidence once again in this judgment. But, in brief we will lay down here some of the most relevant evidences provided by the witnesses. 8. In view of the above submissions of the learned counsels representing the parties, though we have scanned through the evidence available in the record, we do not find it necessary to reproduce all the evidence once again in this judgment. But, in brief we will lay down here some of the most relevant evidences provided by the witnesses. PW-2 and PW-7 only testified as to the precise locations of the injuries caused on the body of the victim by the accused persons. According to them the accused persons caused injuries to both the left and right hands and also on both the left and right legs and shoulder of the deceased victim. None of the other witnesses mentioned the precise place of injuries caused by the accused persons. The next P.W. who testified as the two P.W.s is the doctor, who conducted the postmortem examination on the dead body of the deceased victim. He was examined as PW-1 and he testified as follows:- "On examination I have found: External Appearance: Cut mark on right leg, skin and muscle deep, stitch and dressed, cut mark over right knee size 2 cm (muscle deep), stitch and dressed, cut mark in right palm reason of hand size 7cm muscle deep. Penetrating wound on left leg in four sites, two internal and two lateral. Brain and spinal canal are healthy. Thorax is healthy. Abdomen:Peritonoum cavity contains blood stained greenish colour food. Stomach and its contents: Undigested food particles are present and an ulcer 1.5 cm breadth. Spleen, liver, kidneys and organs of generation are found healthy. Bladder is found empty. Other injury: Fracture radius (right), distal third, fracture dislocation of distal mataphelengial joint on left side. Fracture left lner bone in middle part. Fracture left leg bond (tibia and fibula in the distal third). Fracture dislocation of distal mata-carpo Phalangial joint, left hand. Summary of the injury: Dead body of an elderly male emaciated body, cut injury of right palm, right hand, right leg muscle deep. Penetrating wound in left leg in four sites (two internal and two lateral). Fracture radius (right), left hand, left leg bone (tibia and fibula). Fracture dislocation of distal metacorpo-phelengal. Parietal cavity contain greenish colour food. Stomach contains blood with an ulcer 1.5 cm breadth in greenish colour. Injuries were anti-mortem in nature. Penetrating wound in left leg in four sites (two internal and two lateral). Fracture radius (right), left hand, left leg bone (tibia and fibula). Fracture dislocation of distal metacorpo-phelengal. Parietal cavity contain greenish colour food. Stomach contains blood with an ulcer 1.5 cm breadth in greenish colour. Injuries were anti-mortem in nature. Opinion: In my opinion cause of death was due to heamorhage and shock following multiple injuries sustained in the body of the deceased and perforation of gastric ulcer." 9. From the evidence given by the witnesses, it can safely be concluded that the injuries caused to the victim were only on his legs and hands. The nature of the injuries caused by the appellants and the parts of the body on which they had inflicted shows that they had no intention to kill the victim. Therefore, we are in agreement with the learned counsel for the appellant that the accused persons should have been held guilty and convicted for the offence punishable under Section 304 Part-II IPC and not under Section 302 of the same code. 10. Further on perusal of the evidence given by the PW- 3, 4 and 7, we find that they have been injured by some of the accused persons and their statements have been supported by the evidence of PW-9 who is the doctor who examined them during the investigation. The Doctor, however, testified that their injuries were simple. Therefore, we are in agreement with the learned Sessions Judge, Morigaon who found them guilty of having committed the offence under Section 323 IPC including the sentence given by him. 11. Lastly, on the prosecution's case that the accused persons after forming an unlawful assembly, committed riot and in the course of the same committed the offences stated above, we have examined the testimonies of P.W. Nos. 2 to 8 and P.W No.13 and we have noticed that all of them have seen the accused persons at the place of occurrence with weapons in their hands. Their evidence remained unshaken. As such, we do not find reason to interfere with the judgment and order passed by the learned Sessions Judge, Morigaon on that charge. 12. 2 to 8 and P.W No.13 and we have noticed that all of them have seen the accused persons at the place of occurrence with weapons in their hands. Their evidence remained unshaken. As such, we do not find reason to interfere with the judgment and order passed by the learned Sessions Judge, Morigaon on that charge. 12. Now coming to the sentence to be given to the accused persons under Section 304 Part-II IPC, considering the facts and circumstance of the case, we are of the considered view that an imprisonment of 8 years by retaining the fine amount already imposed by the learned Sessions Judge and in case of default to, a further period of imprisonment of 6 (six) months would be the right and commensurating sentence. Accordingly, the appellants are sentenced as stated above. The period of sentence given for the different offences shall run concurrently. The appeal is partly allowed. 13. It is confirmed by the learned counsel appearing for the parties that the victim's family has not been given the compensation as they are entitled under the relevant laws. It is submitted by the learned Additional Public Prosecutor that the compensation currently given to victim's family in case of death is Rs. 5,00,000/- (Rupees Five Lakh) and we have confirmed by looking into the notification dated 01.02.2019 issued by the Secretary to the Govt. of Assam, Home & Political Department. Therefore, we direct the Assam State Legal Services Authority to release the sum of 5,00,000/- (Rupees Five Lakh) to the family members of the victim on proper identification by the learned counsel. 14. Send back the LCR along with a copy of this judgment.