Haidar Ali vs State of Assam

T.C. Das, J.—Though our Constitution has guaranteed fundamental right and liberty to every citizen to be enjoyed in performance of duties and obligations it may not be considered as a licence to commit any offence as one may like Liberty is not a licence to kill people. Here is a case where a life was lost as a result of quarrel between two housewives over children. We propose to open this case with a broad proposition by quoting Narotam Singh Vs. State of Punjab and Another, Their Lordships of the Supreme Court observed and held

The law of crimes perverts itself on occasions into the crime of law if narrow legalism overwhelms special justice. This criticism applies to the field of penology as well, and so the finer, more perceptive and sociologically relevant approach to punishment, when crime has been proved, is to take a holistic, realistic and humanistic size-up action as to promote rehabilitation without offending community conscience...

Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilos and peripheral probative shortfalls. The ''sacred cows'' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home....

The story as to the prosecution case and as unfolded by the witnesses may be narrated in nut-shell as hereunder:

Samejuddin a resident of Barpeta had to meet his death on 25th day of April, 1976 at about''9 or 10 A.M. On the day of occurrence, the appellant along with 5 others who were co-accused in the trial Court went to the house of the deceased. The appellant Haidar Ali had a spear and a lathi with him. When he entered into the court-yard of the deceased he assaulted P.W. 1 Sajirannessa, the widow of the deceased and P.W. 2 Ramjannessa Bewa, the mother of the deceased with a spear and lathi as a result of which both P.Ws. 1 and 2 sustained injury. The cause of assault was the quarrel that cropped up between P.W. 1 and her sister-in-law over children. When quarrel started the daughter of elder brother of P.W. 1 shusband called her maternal uncle Haidar Ali, the present appellant who came with spear and lathi and assaulted both P.W. 1 and P.W. 2 as aforesaid. On commission of assault on P.Ws. 1 and 2 they raised hullah. On hearing the hullah the deceased Samejuddin who was working in a nearby field came to his house and as soon as he entered his house he was assaulted by the appellant Haidar on his chest with a spear. After the assault, Haidar pulled out the spear and ran away. Samejuddin fell on the ground as a result of the injury. Meanwhile, P.Ws. 3, 4 and 7 came to the place of occurrence along with others, took Samejuddin under the shade of a tree and gave water. P.W. 5 heard about the incident from the injured persons, namely, P.W. 1 and P.W. 2 and he rushed to the Police S tation to lodge the FIR. Accordingly, Habibur Rahman (P.W. 5) lodged an FIR with the Officer-in-charge of Barpeta Police Station. The FIR was written by one A. Hamid Khan of Barpeta. Meanwhile, P.W. 3 Insan Ali who was the President of Paschim Betbari Gaon Sabha, at the instance of P.W. 7 Raijuddin Mian, recorded a dying declaration and soon after the same was recorded, Samejuddin succumbed to the injuries. On receipt of the FIR police registered a case against 6 accused persons including the appellant and started investigation which was followed by a charge-sheet against the appellant and 5 others. Therefore, altogether there were 6 accused persons who were charge-sheeted to face the trial in the Court of the learned Sessions Judge, Barpeta. Charges u/s 147/149/302 IPC were framed against all the accused persons who pleaded not guilty. The prosecution examined as many as 10 witnesses jttcluding the police officers and autopsy surgeon. The statement of the accused was also recorded by the learned Trial Court u/s 313 Cr.P.C. On consideratiori of the evidence on record the learned trial Court found that there was no material evidence to rope all the accused. The learned trial Court found ail the accused except the appellant not guilty and acquitted them. As regards the appellant, the learned trial Court found him guilty u/s 302/323 IPC and convicted film under the aforesaid provisions of law. ''The learned trial Court though sentenced the, appellant to suffer R.I. for life, did not pass any separate sentence u/s 323 IPC. Being aggrieved by the aforesaid conviction and sentence, the appellant has preferred this appeal challenging the propriety and legality of the judgment of the learned trial Court.

Mr. S.R. Bhattacharjee, learned Counsel for the appellant has made the following submissions before us:

That the prosecution has contradicted its own story as narrated in the FIR by a new story as unfolded by the prosecution witnesses in course of trial. That the P.Ws. 1, 2 and 7 whom the prosecution relied as the most trusted witnesses to prove the guilt of the accused are not at all believable and krust worthly witnesses. Moreover, P.W. 7 was not an eye-witness at all. P.W. 4 Bilayat Hussain was most unreliable and as such the prosecution declared him hostile in course of the evidence when he deposed in contradiction to his earlier statement made before the police. It was not certain from Whom the material Ext.Ka was seized as it appears from the seizure list (Ext.4) that P. W. 2 produced the spear stated to be used by, the accused for commission of the crime but that was not the actual spear as because one of the witnesses, namely, P.W. 7 has stated that a spear was seized from the possession of one Astaf Khari, one of the accused. The medical evidence of the autopsy surgeon P.W. 8 was not conclusive about the nature of injuries on the person of Samejdddln, the deceased. The medical evidence discloses that there were two injuries on the chest of the victim. But the eye-witnesses to the occurrence as produced by the prosecution speak of one assault on the chest of the victim by accused-appellant with the help of a spear which he had in his hand. The version of P.Ws. 1 and 2 as regards assault on them differs from the statement made by them before police. The learned Counsel for the appellant has lastly submitted that even if it is held that Samejuddin succumbed to the injuries which were inflicted by a spear blow on his chest by the accused it was on a grave and sudden provocation and, as such, the gravity of the offence as against the appellant may come down to that of u/s 304 Part I and not one u/s 302 IPC. In support of the above contentions Mr. Bhattacharjee, learned Counsel for the appellant has referred to us the evidence of the witnesses as produced by the prosecution.

We have gone through the evidence ourselves. On going through the evidence it appears that the Trial Court based the conviction of the accused on the evidence of P.Ws. 1 and 2 who appear to be the material witnesses for the prosecution. P.W. 1 Sajirannessa is the wife of Samejuddin, the deceased. She has stated in her evidence that on the day of occurrence a quarrel was picked up by her sister-in-law with her over children which culminated to the death of her husband, The daughter of her husband''s elder brother called Haidar who was her maternal uncle and Haidar on reaching the court-yard, struck P.W. 1 with a Fala as a result of which She sustained injuries on the finger of her right hand. She has further stated that accused Haidar also struck her with lathi thrice; While her mother-in-law P.W. 2 Ramjannessa Bewa intervened, she was also assaulted by accused Haidar. This witness has also stated that accused Sarja and Chand also assaulted her mother-in-law (P.W. 2) with lathis. Heriurther evidence is that her husband Samejuddin, the deceased was cutting earth in a nearby field. Hearing the hue and cry, he ran to the, place of occurrence and as soon as her husband arrived at the place of occurrence, the accused Haidar pierced his left chest with the spear, Her husband fell down. Thereafter, P.W. 4 and P.W. 7 came and gave her husband water to drink and also poured water on his head. Her further evidence is that although her husband was injured, he could speak and as such, the President of the Gaon Panchayat came and recorded the statement of her husband. In cross-examination she has stated that the accused Rabikhan and Asraf came after they had been assaulted. On further cross-examination the defence could not bring any vital or material discrepancy in the evidence of P. W. 1.

Now let us see as to whether, P.W. 2 has corroborated the testimony of P.W. 1. P.W. 2 is Ramjannessa Bewa, mother-in-law of P.W. 1. She has fully corroborated the evidence of P.W. 1. She has stated that the quarrel was between the children of her son and the children of Nibaruddin. She has further stated that later on the quarrel was picked-up by the sister-in-law of P.W. 1 with P.W. 1. She has also stated that accused Haidar came and inflicted spear injury and lathi blow on P.W. 1. When she wanted to protect P.W. 1, accused Tamser and Haider struck her with lathis. When they raised hue and cry, Samejuddin came and as soon as he reached the court-yard, accused Haidar gave a spear blow on the left chest of Samejuddin. She has categorically stated that after stabbing with the spear, Haider withdrew it and took it away and immediately after committing the crime, Haidar took away his sister Meghjan. In her evidence she has stated that Samejuddin made a statement to P.W. 3 before his death. The learned Counsel for the appellant has pointed out few discrepancies in the evidence of P.W. 2 relating to causing of assault to her and to P.W. 1 as also about the carrying of weapon by each of the accused, but those appear to be minor discrepancies which cannot in any way destroy the material particular of the evidence.

We have also heard Mr. C. Baruah, learned Public Prosecutor for the State. It is very fairly submitted by the learned Public Prosecutor that he is not placing any submission regarding the dying declaration because the learned trial Court did not take itote of it as according to the learned Trial; Court it was not a dying declaration in the ltrict sense as because the evidence discloses that the statement was recorded after arrival of the investigating officer at the place of occurrence. As regards the evidence of P.W. 4 and P.W. 7, the learned Public Prosecutor has not given any emphasis on their testimony. According to the learned Public Prosecutor P. Ws. land 2 are the star witnesses and if the evidence of these two witnesses are believed, the conviction can be sustained. It is further submitted by the learned Public, Prosecutor that the learned Trial Court solely based on the evidence of P.Ws. 1 and 2 though incidentally discussed the evidence of P.W. 7 to base the conviction of the appellant. As regards the evidence of P.W. 4, the learned Public Prosecutor has submitted that though he was declared as a hostile witness, the Court can consider the evidence of this witness to see as to whether his evidence may be placed for the purpose of corroborating other material evidence on record. When confronted with the statement made in the First Information Report and the evidence of P.W. 5, the learned Public Prosecutor has fairly submitted that his evidence may not be accepted at all because he was neither an eye-witness nor he was conversant with the actual fact when the FIR was lodged. P.W. 5 only heard about the incident from others and rushed to the police station to inform the police as regards the incident. The FIR was written by another person and in evidence of P.W. 5 he has stated that it was not read over to him and he did not know about the actual contents of the FIR.

However, on going through the statements made in the FIR we are of the opinion that the sub-stratum of the story of the prosecution has not been destroyed. Moreover, FIR is not a substantive evidence. It is only used for the purpose of corroboration and contradiction. We do not agree to the contentions of the learned Counsel for the appellant that the story narrated in the FIR and story narrated by the witnesses differ from each other on material particular. The death of Samejuddin has not been denied and the medical evidence as regards postmortem report of the deceased has not also been challanged by the defence. The only submission made as regards the evidence of P.W. 8, the medical officer is relating to the proof of injuries. At the time of post-mortem examination P.W. 8 found the following injures:

(1) One punctured (perforated) wound 1 1/2" X 1/4 X up to the inside of the thoracic cavity on the 4th intercostal space of the left side of the chest (front side), about 1" lateral to the left nipple. The wound is transversed and the margin of the wound is incised The wound travels transversely towards the medial side, i.e. from outer aspect to the medial aspect.

(2) One incised wound 1/2 X 1/4" X 1/6" in the outer aspect of the middle part of the chest about 1" below the injury No. 1....

According to P.W. 8 the death was due to shock and haemorrhage as a result of the injury and injury No. 1 was sufficient to cause death in ordinary course.

On scrutiny of the evidence of P.W. 8 it appears that injury Nos. 1 and 2 were caused by one blow of spear and there can be no confusion about it. So far it relates to the evidence of other witnesses, we may confine to the Evidence of P.Ws. 1 and 2 which appears to be most cogent and reliable. They sustained injuries as a result of assault caused by the appellant. We have already stated that there is no reason to disbelieve the evidence of P.Ws. 1 and 2 and they have corroborated each other in all material particulars relating to the offence, As regards seizure of the spear, the seizure list speaks that the seizure of the spear was made on production by P.W. 2. The learned Trial Court while considering the evidence on record found that there was no evidence as regards formation of an unlawful assembly by all the accused and in absence of inference of any probable common object of the accused, the accused were acquitted of the charges u/s 149 and 147 IPC. As regards the appellant, he was found guilty u/s 302/323 IPC on the evidence on record. On going through the evidence on record we have noticed that individual action of the appellant has been clearly stated by almost all the witnesses, namely, P.Ws. 1, 2, 4 and 7. The evidence of RWs. 1 and 2 being cogent and reliable, the prosecution can base the conviction upon their testimony.

On perusal of the evidence on record land upon hearing the learned Counsel of the parties we are in agreement with the findings of the learned trial Court in convicting the appellant u/s 302 IPC read with Section 323 IPC. As regards the conviction u/s 323 IPC there are materials on record and those materials are available in the evidence of P.W. 8. P.W. 8 in his evidence has stated that Dr. S. Malakar treated P.Ws. 1 and 2 who sustained injuries caused as a result of the assault on their persons. The learned Counsel for the appellant has not also seriously urged before us relating to the charge u/s 323 IPC against the appellant, perhaps due to the reason that no separate sentence has been inflicted upon the appellant on this count.

On overall consideration of the evidence on record and also upon hearing the learned Counsel of the parties we hold that the appeal is meritless and it deserves dismissal which we accordingly do. The record shows that the accused is on bail. A notice is to be issued to the accused-appellant and to his bailor for production of the accused to surrender before the learned Chief Judicial Magistrate, Barpeta to serve out the sentence as passed by the learned Addl. Sessions Judge.