Asar Ali and Others vs State of Assam

D.N. Chowdhury, J.—This appeal is directed against the conviction and sentences passed by the learned Additional Sessions Judge, Nagaon, in Sessions Case No. 30(N)/91, convicting the accused/Appellants Idrish Ali, Islamuddin alias Pania and Inus Ali u/s 302 IPC and sentenced each of them to suffer rigorous imprisonment for life and to pay a fine of Rs. 1000/-, in default to undergo rigrorous imprisonment for further one year; and also convicting accused Asaruddin and Tazu Fakir u/s 302/34 IPC, sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 1000/- each, in default to undergo further rigorous imprisonment for another year.

According to the prosecution, in the morning of 26th July, 1982, Md. Abdul Samed (since deceased) was ploughing in his field at village Dhania Bheti, Police Station- Dhing, District- Nagaon. At about 8-30 am. accused Islam Moral (since deceased), Innas Ali, Moijuddin, Idris Ali, Pania, Asar Ali and Tazu Fakir, went to the field armed with Lathi, Dao, Dagger, etc. When the accused reached the field, accused Islam Moral ordered the other accused persons to finish Abdul Samed. Then all the accused persons attacked Abdul Samed with their weapons consequent to which Abdul Samed sustained grievous injuries on his body. Abdul Samed thereafter stood-up and ran for a distance of about twelve feet, but then he again fell down on the field and died there. The occurrence was witnessed by Abdul Satter, Nurul Islam, Abdul Rashid and other villagers. The FIR was lodged by Abdul Satter (P.W.-4) at the Batadrava Police Out-post. The Police thereafter came to the place of occurrence, investigated into the matter and after investigation, submitted charge sheet against all the accused persons under Sections 147/148/149/302 IPC. On committal, the learned Additional Sessions Judge framed charges u/s 302/34 IPC against all the accused persons. During trial, the prosecution examined six witnesses and the defence examined four witnesses. The informantt, Abdual Satter, was examined as P.W.-4. He stated that on the date of occurrence, he came to the house of Nur Islam, the son of the deceased, who incidentally happened to be the nephew-in-law of the informant. Instead of taking the road, the informant was going through the field and from a distance of about two hundred feet, he saw six/seven persons quarreling with Abdul Samed in his land where Abdul Samed was ploughing. On coming nearer Abdul Satter saw accused Islam Moral, Idris Ali, Innas Ali, Pania, Moijuddin, Asar Ali, Tazu Fakir surrounding Abdul Samed. Accused Islam Moral ordered the other accused persons to kill Abdul Samed. Accordingly, accused Idris Ali and Pania alias Islamuddin caught hold of Abdul Samed and felled him down on the field. Then accused Innas Ali and Moijuddin gave dagger blows on the left side of Abdul Samed''s chest. Accused Asaruddin was near the place of occurrence with lathi in his hands preventing other persons from coming to the place of occurrence for rescuing Abdul Samed. The informant (P.W.-4) stated accused Tazu Fakif was also near the place of occurrence looking at the incident. After inflicting the dagger blows, all the accused persons left the place of the occurrence. Abdul Samed who was then injured tried to go home and after running about twelve feet, fell down on the field and expired. P.W.-4 on going near Abdul Samed, found that he had already expired. The witness named Nur Islam, Abdul Rashid and Hussen Ali Munshi, who were also witnesses to the occurrence. Thereafter, he lodged the FIR before the Police at the Batadrava Police Out-Post. According to the witness, the Police came to the place of occurrence at about l-30 pm and removed the dead body from the place of occurrence for Post-Mortem examination. In cross-examination, the witness stated that Tazu Fakir was not armed with weapons and that said Tazu Fakir did not cause any injury to Abdul Samed, the deceased. The witness even stated that he did not ask the scribe to mention the name of Tazu Fakir as one of the assailants in the FIR.

P.W.-2, Nurul Islam, was the son of the deceased. Abdul Samed. At the time of occurrence, the witness was working in the paddy field of Hussen Ali Munshi, located adjacent to the place of occurrence, where his father was ploughing in his own field. The witness deposed that the accused persons came in a body, armed with weapons, to the place of occurrence and started altercation with his father. The witness stated that at the instance of Islam Moral, accused Idris Ali and Pania, over-powered his father by catching hold of his father''s hands and forcibly felled his father down on the field. Then accused Innas Ali and Moijuddin, inflicted Dagger blows on the chest and back of his father. Nurul Islam (P.W.-2) further stated that accused Tazu Fakir and Asaruddin were standing near with lathies in their hands preventing other persons from going to the place of occurrence to rescue Abdul Samed. That after inflicting Dagger blows, all the accused persons left the place of occurrence. The witness also stated that his father thereafter stood-up, walked a few steps and fell down. When he went near his father, his father was dead. The witness deposed that accused Innas Ali had submitted a proposal for marrying his sister, Amina Khatun, but his father rejected the proposal and Amina was married off to some other person in some other village. One day when Amina came home from her husband''s house, the accused kidnapped her as a result of which there a village "Mel" and for that the accused had a grudge against the deceased. The witness stated that Innas Ali was the son of accused Islam Moral whereas accused Idris Ali was the brother of accused Innas Ali. He further stated that accused Asar Ali, Tazu Fakir and Moijuddin were uncles and cousin of accused Innas Ali. P.W.-2 deposed that the place of occurrence was about a hundred and twenty metres from his house. He further deposed about the presence of Abdul Satter and Hussen Ali Munshi, when they raised alarm.

P.W.-1, Abdul Rashid, stated in his evidence that he was at the relevant time in the house of the deceased talking with the wife of the deceased. The wife of the deceased happened to be his related aunt. That on hearing commotion, he went towards the place of occurrence where Abdul Samed was ploughing. From a distance he saw some persons near the deceased. He thereafter went near the place of occurrence and while he was at a distance of about twenty five feet from Abdul Samed, he heard Islam morel ordering other accused persons to kill Abdul Samed. Thereafter, he stated that accused Idris Ali and Pania caught hold of the hands of Abdul Samed and felled him down to the ground without allowing him to stand-up. When Abdul Samed was in that position, lying on the ground, accused Innas Ali and Moijuddin gave penetrating Dagger blows over his chest, On the other hand, accused Asaruddin and Tazu Fakir were preventing other persons from going to rescue Abdul Samed. Abdul Rashid, P.W.-1, further stated that after receiving Dagger blows, Abdul Samed stood up, walked for a distance of about ten feet and again fell down on the ground. The witness deposed that he saw Nur Islam, Hussen Ali Munsi and Abdul Satter at the place of occurrence. He also stated that the deceased was ploughing in his own land/field. The witness stated about the coming of the Police at the place of occurrence as well as about holding of the Inquest.

P.W.-3, Hussen Ali Munshi, did not see the occurrence. He came to the place of occurrence after the incident and found Abdul Samed lying dead in the field. He found the plough of Abdul Samed lying near the dead body. He also found Abdul Satter there, who filed the FIR. He stated that he also accompanied Abdul Satter to the Police Outpost. P.W.-6, Shri R.K. Goswami, is the Investigating Officer prepared the Inquest and conducted the investigation. The witness (P.W.-6) also deposed about sending of the dead body to the Nagaon Civil Hospital for Post-Mortem examination. P.W.-5, Dr. T.N. Bhattacharya, the Medical Officer, who conducted the autopsy, found the following injuries on the body of the deceased:

One oval shaped penetrating injury measuring 2"x l"x 21/2" in 2nd left intercostal space in mid clericular line. Maigin clean and everted direction uP.W.ards and laterally. On opening left pleurae and upper lobe of the left lung found injured.

One oval shaped obliquely placed penetrating injury measuring 2"x 1"x 3" in the left 8th intercostal space in mid auxiliary line Margins clean and everted. Direction medically and downwards. On opening the wound left pleurae, vessel lobe left lung, diaphragm and cardiac end of stomach found injured. There is fracture of the 8th and 9th left rib at the site of the injury.

Cranium and spinal canal healthy. Thorax, walls, ribs and cartilage already noted. Left Pleurae cavity contains 320 CC of blood. Right lung healthy. Liver, Spleen, Kidney healthy. Right lung corresponding to both the injured lungs. Pericardium and Heart healthy. Heart empty on both sides.

Vessels injured at the site of the injuries. Abdomen-Pericardium and walls injured corresponding to injury No. 2. Pericardium cavity contains direct blood mixed with semi digested food matters. Match, Pharynx and Oesophagus healthy. Stomach and its contents injured at the credio end along the greater curvature contains dark blood, clots and semi digested food matters. Small intestine and its contents healthy contains faecal matters.

Liver Spleen, Kidneys Bladder and organs of generation extema and internal healthy. Bladder empty. Muscle, bones and joints noted already.

Ante-mortem blood clots found firmly adherent to in and around the injuries. The injuries are ante-mortem in nature. In my opinion death due to shock and haemorrhage as a result of the injuries sustained.

The combination of both the injuries is sufficient to cause the death of a normal human being. Such injury may be caused by some sharp pointed instruments. The injuries are attached to right lung also.

The Doctor in his evidence stated that the combination of both the injuries, sustained by the deceased Abdul Samed, was sufficient to cause the death of the deceased and those injuries might be caused by some sharp, pointed instruments/weapons.

The accused examined four defence witnesses. D.W.-1, Samar Ali of village Dhami Bheti, deposed that accused Idris Ali was ploughing with him. D.W.-1 was examined to show that Idris Ali was not present at the place of occurrence during the relevant time when the incident took place. D.W.-2, Abdul Mazi Pradhani, stated that on the date of occurrence at about 8-30 am, he heard cries of Abdul Samed and on coming out from his house, saw Moijuddin running away from Abdul Samed with a knife in his hand. The witness state that Abdul Samed told him that accused Moijuddin had killed the deceased (Abdul Samed). D.W.-3, Deben Chandra Baruah, stated that on the date of occurrence, accused Islamuddin was working in his Paddy Field. That at about 12 Noon, the witness (D.W.- (sic) went to his Paddy Field to give meal Islamuddin. D.W.-4 further stated that he reported about non-involvement of accused Islamuddin Moral in the incident. D.W.-4, Abdul Hye, in his evidence stated that while he was standing on the road, Abdul Satter (P.W.-4) told him that he was going to Dhania Bheti to enquire about the death of Abdul Samed. The witness deposed that his house was about 1 1/2 Miles away from the house of Abdul Satter and 21/2 Miles from Dharamtul. D.W.-4 was the brother of accused Islamuddin Moral.

The learned trial Court, on hearing the learned Counsel for the parties and on considering the materials on record, found the accused guilty of the offences as stated earlier and accordingly convicted and sentenced them thereunder as mentioned hereinbefore. Hence this appeal.

Mr. C.R. Dey, learned Senior Counsel, appearing on behalf of the accused/Appellants, submitted that the prosecution failed to prove the involvement of the accused with the offence beyond all reasonable doubts. Mr. Dey, the learned Counsel pointing out to the evidence, submitted that it was Moijuddin who caused the fatal blow and that none of the accused/Appellants could be roped in for the incident which was done at the instance of Islam Moral. The learned Senior Counsel took us through the entire evidence on record to show that the five Appellants were in no way connected with the offence and in support of his contention pointed to the testimony of P.W.-4 and P Ws 1 and 2 as well as the testimony of D.Ws. 1, 2, 3 and 4. He also pointed to the infirmity of the FIR and submitted that the said FIR was not the real FIR and that the prosecution suppressed that actual FIR.

Mr. Joginder Singh, the learned Public Prosecutor, on the other hand submitted that this was a fool-proof case in which the prosecution established its case beyond all reasonable doubts.

We have already indicated the evidence of the witnesses. From the evidence of the witnesses, more particularly from the evidence of P.W.-4, it is difficult to rope Tazu Fakir for the offence with the aid of Section 34 IPC. The materials on record do not disclose the participation of accused Tazu Fakir in the crime and accordingly, cinviction of Tazu Fakir with the aid of Section 34 IPC can not be sustained, and the same is set aside.

As regards the involvement of the other accused, Asar Ali, whose involvement was indicated by P.Ws. 1, 2 and 4, it cannot be inferred that accused Asar participated along with the other accused persons in crime for causing the death of Abdul Samed. The nature of the evidence and the attending circumstances at best indicate that accused Asar Ali intended to cause grievous hurt by means of sharp cutting instrument and, therefore, he can at best be liable for an offence u/s 326 of the IPC in aid of Section 109 and not for an offence u/s 302 in aid of Section 34 IPC. Accordingly conviction of accused Asar Ali u/s 302/34 IPC is set aside and his conviction is modified to that of an offence u/s 326/109 IPC and Asar Ali is sentenced to rigorous imprisonment for five years u/s 326/109 IPC.

We have carefully considered the evidence against the accused Inus Ali, Idris All and Islamuddin. The testimony of P.W.-3 and P.W.-4 was corroborated by P.W.-1 and 2. The medical evidence deposed by P.W.-5, Doctor supported the prosecution story. The defence version, read with testimony of D.Ws.-1, 2, 3 and 4 did not affect the varasity of the prosecution story as regards above three accused Appellants. The omissions and commissions as well as the small discrepancies pointed out by Mr. Dey the learned senior Counsel did not affect the substratum of the prosecution story as regards the Appellants Inus Ali, Idris Ali and Islamuddin are concerned.

As regards the above three accused/Appellants, we do not find any material to differ from the finding arrived at by the learned Additional Sessions Judge and accordingly, their Appeal fails. The Appeal of Tazu Fakir is allowed and the Appeal of Asar Ali is partly allowed.