Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 375 (GAU)

Ajijul Haque v. State Of Assam

2020-03-12

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. J Sarma, learned counsel for the appellant and Mr. BB Gogoi, learned Addl. Public Prosecutor, appearing for the State/respondent No.1. 2. This appeal under Section 374(2) of the Cr.P.C. is preferred against the Judgment and Order, dated 17.12.2014, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 01/2012, whereby the accused appellant has been convicted and sentenced to rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand), in default to undergo rigorous imprisonment for 6(six) months under each count of law, i.e. under Sections 326/307 of the IPC. 3. The prosecution case, in brief, is that one Izzat Ali filed an FIR before the Officer-InCharge of Morigaon Police Station on 20.06.2011, alleging, inter alia, that the accused persons including the accused appellant, named therein, wrongfully restrained his son Mukul Ansari on the public way near the house of one Ahmed Master while he was coming along with one Nazimuddin, after taking his wage of Rs.4000/-. They rounded off Mukul Ansari and when he made an attempt to escape, the accused appellant Ajijul Hoque inflicted dagger blows in his abdomen, which resulted in his intestines protruding and he fell on the ground and thereafter, the accused appellant took away Rs.4000/- from him. On hearing hue and cry, the local residents gathered at the place and there upon, the accused persons fled away. The injured was, thereafter, shifted to Morigaon Civil Hospital, where his condition was found to be critical. 4. Based on the above FIR, Morigaon PS Case No. 198/2011, under Sections 341/324/384/34 of the IPC was registered and after completion of investigation, the police laid a charge-sheet against the accused persons including the accused appellant under Sections 341/326/307/34 of the IPC. As the offence under Section 307 of the IPC is exclusively triable by the court of Sessions, the learned CJM, Morigaon committed the case to the Court of learned Sessions Judge, Morigaon for trial. 5. On receipt of the committal order, a case being Morigaon Sessions Case No.01/2012 was registered in the Court of learned Sessions Judge, Morigaon. The learned Sessions Judge, on hearing the learned counsel for both the sides and after considering the materials on the case diary, framed charges under Sections 341/326/307 of the IPC against the accused appellant. 5. On receipt of the committal order, a case being Morigaon Sessions Case No.01/2012 was registered in the Court of learned Sessions Judge, Morigaon. The learned Sessions Judge, on hearing the learned counsel for both the sides and after considering the materials on the case diary, framed charges under Sections 341/326/307 of the IPC against the accused appellant. The accused appellant pleaded not guilty and claimed to be tried. 6. In order to establish the aforesaid charges, the prosecution examined eight witnesses, including the victim, the medical officer and the investigating officer. After closing the evidence of the prosecution side, statements under Section 313 Cr.P.C. was recorded, where the accused persons pleaded innocence and declined to examine any witness in defence. The learned Sessions Judge, Morigaon after considering the evidence led by the prosecution in the case and hearing the arguments of both the sides, held the accused appellant guilty of the charges and accordingly convicted and sentenced him, as stated above. 7. Xxxx XXXX XXXX XXXX 8. Mr. J Sarma, learned counsel for the accused appellant contends that the learned trial court convicted and sentenced the accused appellant on mis-appreciation of the evidence on record. According to Mr. Sarma, the learned trial court appreciated the fact that there was no eye witness to the alleged incident, but placing reliance on the evidence of PW-6, convicted the accused appellant of the charges. 9. Mr. BB Gogoi, learned Addl. Public Prosecutor, appearing for the State/respondent No.1 submits that on appreciation of the evidence of PW-8, the Doctor and the definition of ''grievous hurt'' as defined in Section 320 of the IPC, it is crystal clear that the injured Mukul Ansari had received ''grievous hurt'' caused by sharp cutting dangerous weapon. Mr. Gogoi further submits that on scrutiny of the evidence of PW-2, Md. Nazimuddin, PW-4 Mukul Ansari, the injured and PW-6, Sukur Ali, it is clearly established beyond any shadow of doubt that no other person except the accused appellant only inflicted the grievous hurt on the vital part of the body of the victim, caused by a sharp cutting pointed weapon. It is also submitted by Mr. Nazimuddin, PW-4 Mukul Ansari, the injured and PW-6, Sukur Ali, it is clearly established beyond any shadow of doubt that no other person except the accused appellant only inflicted the grievous hurt on the vital part of the body of the victim, caused by a sharp cutting pointed weapon. It is also submitted by Mr. Gogoi that evidence of PW-8, the Doctor, as given in his examination-in-chief has remained unshaken and undisputed in regard to the nature of the injury, the injured sustained and in this regard, mere omission to mention the age of the injury does not in any way weaken the doctor''s opinion. 10. I have given due consideration to the above arguments advanced by the learned counsel for both the sides. 11. Be it mentioned here that for convicting a person under Section 326 of the IPC, the requirement of Section 320 of the IPC must be satisfied. ''Hurt'' is defined in Section 319 IPC, whereas Section 320 IPC defines what is a ''grievous hurt''. On the other hand, Section 307 of the IPC requires the intention or knowledge of such nature to constitute the offence of murder. 12. The intention to kill a person should be clearly proved by circumstances beyond reasonable doubt. Now, the alleged incident as it appears from evidence, had taken place on a public way near the house of one Ahmed Master, which is shown in the sketch map, vide Exhibit-2, prepared by PW-7, the investigating officer, at about 7 pm on 19.06.2011. 13. From the evidence of PW-4, Mukul Ansari, the injured, it transpires that on 19.06.2011, at around 7 pm, while he along with Nazimuddin was coming on foot through a village path, taking a bicycle from the house of one Hanif Ali, under whom he worked as a Mason and was carrying wage amounting to Rs.4000/-, the accused appellant and two other accused persons restrained him near the residence of Muzammil. Nazmul and Nur Amin caught hold of him and at that moment, the accused appellant inflicted dagger blows on his abdomen. He showed his injury to the Court. Then they snatched away Rs.4000/-, which he received from Hanif Ali. His companion Nazimuddin (PW-2) corroborated the evidence of PW-4, the injured and stated to have seen the accused appellant stabbing Mukul Ansari (PW-4) on his abdomen and as a result, his intestines protruded. He showed his injury to the Court. Then they snatched away Rs.4000/-, which he received from Hanif Ali. His companion Nazimuddin (PW-2) corroborated the evidence of PW-4, the injured and stated to have seen the accused appellant stabbing Mukul Ansari (PW-4) on his abdomen and as a result, his intestines protruded. This piece of material evidence of PWs-2 and 4 has been corroborated by PW-6, Sukur Ali, who, after hearing hue and cry on the village path, stepped out of his house and saw the incident in the midst of a quarrel that took place between the accused appellant and the injured. PW-3, Nekibur Rahman witnessed the accused appellant running away from the place of occurrence and immediately witnessed the abdomen injury on the person of the PW-4, who told him on the spot itself that he was the accused appellant, who inflicted the injury. 14. Pw-1, Izzat Ali, the father of the injured, did not witness the alleged occurrence. Having received the information from one Babul and Nazimuddin (PW-2) about the incident, he went to the place of occurrence and found Nazimuddin and Babul Ahmed holding his son Mukul and Ajijul stabbed him in abdomen. However, in cross-examination, he, inter-alia, stated that he heard the incident from his son Mukul Ansari (PW-4) and others. wxyz 15. PW-3, Nekibur Rahman deposed to have seen the accused appellant running away from the place of occurrence and witnessed one boy shouting ''stabbed me; stabbed me'' and after a shortwhile found to be the injured PW-4. zyxw wxyz 16. PW-5, Afazuddin found PW-4 in injured condition at the place of occurrence. zyxw 15. Pw-8, Dr. Eden Sinha, the medical officer, who examined the injured on 21.06.2011 at GMCH, Guwahati found Mukul Ansari sustaining of penetrating injury on right iliac region by a sharp cutting pointed weapon, which was grievous in nature, vide Exhibit 4, the injury report. 16. From the evidence of PWs-1, 2, 4, 6 and 7 ( I.O.), it is noticed that the injured Mukul Ansari was initially shifted to Morigaon Civil Hospital and considering the criticality of the injuries, he sustained, was referred to the GMCH, Guwahati, wherein he was treated as an indoor patient. 16. From the evidence of PWs-1, 2, 4, 6 and 7 ( I.O.), it is noticed that the injured Mukul Ansari was initially shifted to Morigaon Civil Hospital and considering the criticality of the injuries, he sustained, was referred to the GMCH, Guwahati, wherein he was treated as an indoor patient. Although the prosecution has not exhibited any document pertaining to his reference to the GMCH, it is mentioned in the cross examination of PW-8 (the Doctor) that he did not mention in his report, vide Exhibit 4, that the injured was referred from Morigaon Civil Hospital. From the evidence of PWs as aforesaid, it is apparent that the injured Mukul Ansari (PW-4) was initially taken to the nearby Morigaon Civil Hospital, where he was given initial treatment and then, he was referred to the GMCH, Guwahati for advanced medical treatment. 17. It is noticed that the weapon of offence used for causing injury on the person of PW-4 was not recovered and seized in the course of investigation into the case. However, on conjoint scrutiny of the evidence of PW-4, PW-2 and PW-6 as well as PW-8, the Doctor, no suspicion arises regarding the nature of the weapon used while inflicting the injury on the person of PW-4 and as such, non-recovery of the weapon used in the offence is not fatal in the facts and circumstances in the instant case. Further, in the absence of any evidence regarding the intention on the part of the accused appellant, it can safely be inferred that the accused appellant, in fact, had no intention to kill the victim, but to extort the money, which he carried, although the aforesaid extorted amount was not recovered during investigation. 18. On close scrutiny of the evidence of the prosecution witnesses, as discussed above , this Court is, therefore, of the considered opinion that the injury sustained by PW-4 falls within the definition of Section 320 of the IPC, which defines the expression ''grievous hurt'' punishable under Section 326 of the IPC. 18. On close scrutiny of the evidence of the prosecution witnesses, as discussed above , this Court is, therefore, of the considered opinion that the injury sustained by PW-4 falls within the definition of Section 320 of the IPC, which defines the expression ''grievous hurt'' punishable under Section 326 of the IPC. This Court is also of the further considered opinion that there is no convincing material to show that the accused appellant harboured any intention to kill the injured by the alleged conduct of inflicting stab injury on the person of PW-4 and as such, the finding of the learned trial court, holding the accused appellant guilty of the charge under Section 307 of the IPC is not sustainable in law and facts. 19. Accordingly, the appeal stands party allowed. The impugned Judgment and Order holding the accused appellant guilty of charge under Section 307 of the IPC and the sentence on this count is hereby set aside maintaining the conviction under Section 326 of the IPC . 20. However, in the backdrop of the facts and circumstances as emerged from the evidence on record, this Court is of the view that the ends of justice would be met if the sentence imposed on the accused appellant by the learned trial Court is reduced to the period already undergone by the accused appellant, which appears to be more than 5 years and 5 months. Accordingly, the sentence passed under Section 326 of the IPC is modified to the period of imprisonment already undergone by the accused appellant. 21. The accused appellant be released forthwith. Send back the LCR.