Md Farjul Ali vs State Of Assam And Anr

Mir Alfaz Ali, J

Heard Mr. MH Choudhury, learned counsel assisted by Mr. MK Choudhury, learned counsel and Ms. S Bhuyan, learned Amicus Curiae for the appellant. Also heard Ms. S Jahan, learned Addl. PP, Assam and Ms. A Bora, learned counsel for the informant/respondent No.2.

These two criminal appeals arose from the judgment and order passed by the learned Sessions Judge, Sonitpur at Tezpur in Sessions Case No.298/2015 are taken up for hearing and disposal by this common judgment. By the said judgment, learned Sessions Judge convicted the appellants under section 447/323/324/302/34 IPC and sentenced them to imprisonment for life under section 302 IPC, Simple Imprisonment for 1 (one) month under section 447 IPC, Simple Imprisonment for 2 (two) months under section 323 IPC and Simple Imprisonment for 3 (three) months under section 324 IPC. The appellants were also sentenced to fine of Rs.1,000/- in default to Rigorous Imprisonment for 1 (one) year under section 302 IPC.

As per the prosecution case, on 05.09.2009 at about 5.00 pm, five accused persons including the present appellants trespassed into the house of the informant Monowara Begum being armed with stick, dao and other sharp cutting weapons and assaulted the informant, her husband Sirajul Haque (deceased), her son Abu Nasar, and sister Sufia Khatoon and thereby caused injury to all of them. Later on, Sirajul Haque succumbed to his injuries. An FIR was lodged by Monowara Begum (Pw-1), on the basis of which, police registered Dhekiajuli PS Case No.284/2009 under sections 447/325/326/302/34 IPC. In the course of investigation, police recorded the statement of the witnesses, seized incriminating articles including the weapons of offence, prepared the inquest report and sent the body for post-mortem examination. The post-mortem examination of the body was conducted by Doctor Tek Bahadur Chetry and the injured were examined by Dr. Bhaskar Jyoti Das.

As per the autopsy doctor Pw-1, the deceased sustained the following injuries:

i. Bleeding from nose and mouth present.

ii. Cut wound on left parietal region size 3' × 2'× 1'.

iii. Left parietal bone is cut.

iv. Sub-dural hematoma present.

v. Brain matter is lacerated.

In the opinion of the doctor, death was caused due to coma as a result of the head injury. The doctor further opined that all the injuries indicated above were the consequence of a single assault. The death was between 6 to 36 hours before the post-mortem examination.

Pw-5 Dr. Bhaskarjyoti Das who attended the injured after the occurrence found a clean cut injury on the middle part of the left forearm and a clean cut injury on the centre of the scalp of Pw-3 Sufia Begum, a clean cut injury on the centre of scalp of Pw-2 Monowara Begum and abrasion on the upper part of the back of Pw-4 Abdul Naser.

The doctor opined that the injuries sustained by Monowara Begum and Sufia begum were caused by sharp cutting weapon whereas, the injuries sustained by Pw-4 Abdul Naser was caused by blunt object.

On conclusion of the investigation police submitted charge-sheet against 4 (four) accused persons including the present appellants. Out of the four charge-sheeted accused persons, one Asraf Ali absconded and eventually the present appellants stood trial.

In the course of trial, learned Sessions Judge framed charges against the appellants under sections 447/324/325/302/34 IPC, which were abjured by the appellants. 11 (eleven) witnesses were examined by the prosecution to establish the charges. After completion of the prosecution evidence, the accused persons were examined under section 313 Cr.P.C., wherein they pleaded innocence, however, the accused appellant Md. Usab @ Isob Ali in his examination under section 313 Cr.P.C., stated that the occurrence took place at about 8.30 pm on the issue of payment of contribution towards remuneration of the imam, who was conducting the "Tarabih Namaj". Gafur (Pw-8) forced the appellant Isab to pay the contribution and sought to prevent him from taking part in the Namaj, whereupon, altercation ensued between them and in course of such alteration Gafur tried to drive him out forcibly and the deceased Sirajul pushed him and at that point of time Asraf (absconding accused) came and inflicted injury to Sirajul with a 'dao.'

Learned counsel for the appellant Mr. Choudhury strenuously arguing for the acquittal of the appellants, submits, that the oral testimony of the ocular witnesses were full of contradiction rendering their testimony unworthy of credence and the medical evidence was also not consistent with the oral evidence adduced by the ocular witnesses and as such, no conviction could be based on such evidence.

Learned amicus curiae, however, does not seriously contest the findings of the trial Court as to the involvement of the appellant in the commission of the offence, however, her contention is that having regard to the facts and circumstances under which the occurrence took place and the nature of injuries, premeditation or the intention to cause death could not be attributed to the appellants and therefore, the appellants could not be convicted under section 302 IPC. At best, the appellants could be held liable for offence under section 304 Part-II IPC, submits, learned Amicus Curiae. Learned Addl. PP, Assam supporting the impugned judgment submits that the inconsistencies between the medical evidence and the ocular evidence were insignificant and not irreconcilable and prosecution has proved the charges against the appellant beyond reasonable doubt, and as such the impugned judgment does not call for any interference.

We have considered the submissions made by the learned counsel for the appellant as well as learned Addl. PP and also the submissions made by learned counsel appearing for the informant/respondent. We have also meticulously scrutinised the evidence brought on record.

Pw-2 deposed that at about 8.00 PM Isab Ali came to their house and started arguing with her father. Having seen them engaged in argument, she arrived at the place of occurrence and at that point of time, the other accused person also came there with dao in their hands. Isab Ali assaulted on her head with the dao and receiving the blow given by Isab Ali she became unconscious. Having regained her senses little later, she noticed that Mahmud Ali, Farjul and Asraf Ali assaulted deceased Sirajul. She further stated that Sufia and Abdul Naser (Pw-3 & Pw-4) also sustained injuries in the assault. During cross-examination it has been elicited that Isab Ali did not pay his share of contribution towards remuneration of the Imam, for which alteration ensured between them.

Pw-3 stated that accused Isab Ali called out her father Gafur and thereafter Pw-2 came out and all the four accused persons who came with dao and lathi, assaulted Monowara Begum. Hearing hue and cry, when Sirajul Haque came out of the house, Isab Ali and Fajrul Haque assaulted him. This witness also stated in cross-examination that initially quarrel stated on the issue of non payment of contribution towards remuneration of the imam by he appellant Isab Ali.

Pw-4 stated that initially he was not at the place of occurrence. While he was coming back home, he heard hue and cry and on reaching the place of occurrence, he had seen his mother Monowara Begum and father Sirajul Haque being assaulted by the appellants with dao and lathi. According to him, he was also assaulted and thereafter, the accused persons left the place. During cross-examination this witness has stated that a large number of people gathered there and due to darkness he could not recognise all the persons present and he also could not identify, who assaulted whom.

Pw-6 stated that while he was sitting near the house of the Sirajul Haque he had noticed that Isab, Farjul, Asraf and Mahmmad came to the house of Gofur and Isab started scolding Gofur. At that point of time, Sirajul came out of the house and all the four accused persons started assaulting Sirajul and thereafter Sufia, Monowara Begum and Abdul Naser came out to the place of occurrence and they were also assaulted. During cross-examination this witness also stated that initially alteration took place between Gofur and the accused persons, however, according to him he could not say as to who assaulted whom or who was armed with what kind of weapon.

Pw-7 stated that initially Isab and his mother was scolding Gafur and thereafter Isab, Farjul, Asraf and Mahmmad started assaulting Sirajul, however, he could not notice as to who assaulted whom with what weapon. During cross-examination of this witness, it was elicited that the incident occurred near the bamboo groves which was on the corner of the courtyard of the complaint and it was dark. He further stated that as he was near the Madrassa he did not notice specifically who assaulted whom, as it was not visible due to darkness.

Pw-8 testified that initially Isab Ali came to his house and called him to come out and when he came out, to the courtyard, Mahmmad Ali caught hold of his lungi and tried to snatch it. When Monowara Begum tried to prevent Mahmmad Ali, Isab dealt a dao blow on the right arm of Monowara Begum. Immediately Sufia arrived there and she was also attacked by Fajrul with a dao. Thereafter, when Sirajul came out all the four accused persons attacked him with a sharp weapon. At that point of time, Abu Nasar came out and he was also attacked by all the four persons. This witness also stated in his cross-examination that initially the occurrence started on the issue of contribution to be paid by Isab towards remuneration of the Imam.

Pw-9 stated that when he was going to Madrassa to offer Namaj, he noticed Isab Ali, Farjul Ali, Asraf Ali and Mahmad Ali having heated argument with Gafur in his house. However, having seen them he went for ablutions and did not see the occurrence of assault. According to Pw-10 while going to Madrassa, he had seen heated argument between Gafur and the four accused persons, who were armed with dao. However, out of fear, he did not go to the place of occurrence and therefore, he also did not see the actual occurrence of assault.

A dispassionate scrutiny of the oral testimony of these eight ocular witnesses would show, that initially the occurrence started with alteration and heated argument between appellants and Gafur (Pw-8). We also notice that there were some inconsistencies in the testimony of the ocular witness with regard to individual overt act of each of the appellants as pointed out by Mr. Choudhury. Although there are some inconsistencies in the oral testimonies of the ocular witness regarding the individual act of each of the accused persons, all the ocular witness are found consistent as regard presence and participation of all the appellants in one or other form. It is also evident that both the parties belong to the same village and known to each others. Evidently, occurrence took place at night and it was dark at the time of occurrence. Therefore, it is quite natural that the witness might not have noticed as to who assaulted whom. It also cannot be expected of the witnesses to minutely observe each and every act of the assailant, when the occurrence took place at night in the darkness. But fact remains is that at one point, the eye witness account is consistent, that all the appellants were present at the place of occurrence and participated in the assault. That all the appellants participated in the occurrence is also fortified by the medical evidence of Pw-1 & Pw-5, which shows that besides, the fatal injuries inflicted to deceased Sirajul, Pw-2, Pw-3 and Pw-4 also sustained injuries by sharp and blunt weapon. The prosecution case that the appellants inflicted injuries to the members of the complainant side including the victim Sirajul was further reinforced by the statement of the appellant Isab during his examination under section 313 Cr.P.C., wherein he clearly admitted the occurrence including the assault on the deceased Sirajul. Though, the statement of the appellant Isab was not confessional, inasmuch as, while admitting the occurrence, he tried to absolve herself from any culpability, his statement as regards the occurrence which supported the prosecution version can very well be taken into consideration in view of sub-section (4) of section 313 Cr.P.C.

The submission of the learned counsel Mr. MH Choudhury, that the oral testimony of the prosecution witness deserves to be rejected in view of their inconsistencies with the medical evidence, inasmuch as, had the deceased been assaulted by all the appellants, there could not be only a single blow injury on the body of the deceased, does not appeal to us for the simple reason, that injuries were also caused to the Pw-2, Pw-3 and Pw-4 by both sharp and blunt object as evident from the Pw-5, Dr. Bhaskar Jyoti Das. If the medical evidence of Pw-1 and Pw-5 and the testimony of ocular witness are seen together, the medical evidence can by no stretch of imagination be held to be inconsistent or irreconcilable with the oral evidence, rather the medical evidence as deposed by Pw-1 and Pw-5 supported the oral evidence that the assailants were more than one, reason being that, besides the deceased, other prosecution witness also received injuries.

What therefore crystallizes from the oral testimony of the ocular witnesses coupled with the medical evidence as well as the statement of the accused during examination under section 313 Cr.P.C that all the appellants participated in the occurrence and inflicted injuries to the members of the complainant party including the deceased.

Evidently, initially the quarrel started with heated argument between the appellant Isab and Pw-8 followed by participation of the other appellants, on a trivial issue of non payment of contribution for the remuneration of the Imam by Isab and the verbal quarrel was followed by assault. Evidently the deceased Sirajul came to the place of occurrence later. There was also no convincing evidence, that initially the appellants were armed with any weapon. Thus, having regard to the facts, that initially the appellants were not armed with weapons and the verbal alteration and heated argument with the Pw-8 was followed by assault, as well as the nature of injury, it is difficult to hold that the appellants had any pre-meditation or intention to cause death of the deceased Sirajul. Had they harboured the intention to cause death of Sirajul, the appellants would not have left the victim by giving only a single blow. This apart, causing simple injuries to the other members of the complainant side also suggests, that there was no intention to cause death of the deceased Sirajul. We also take note of the facts, that on the issue of non payment of contribution, the appellant Isab was prevented from offering Namaj by Gafur, which led to heated argument followed by assault and such facts also clearly shows, that there was also provocation from the side of the complainant. The nature of injury inflicted to all the prosecution witness and the deceased and that the occurrence took place in the darkness and nobody had seen as to who and how the injuries were caused, it is also difficult to attribute any intention to cause such bodily injury as is likely to cause death. However, from the sequence of incidents and the injury caused to the prosecution witness including the victim and the weapon used it cannot be said that the appellants did not have the knowledge that injury caused to the deceased may caused death of the deceased.

In view of the above facts and circumstances, when the intention to cause death or the intention to cause such bodily injury as is likely to cause death was absent and the evidence further establishes that the occurrence took place in course of quarrel and sudden provocation, we are of the considered opinion that the appellants could not have been convicted under Section 302 IPC and as such, conviction and sentence under section 302 IPC cannot be sustained. Accordingly, we set-aside the conviction and sentence of the appellants under section 302 IPC, instead, we convict the appellants under section 304 (Part-II) IPC for committing culpable homicide not amounting to murder of the victim Sirajul Haque. As regards the conviction recorded by the learned trial Court under section 323/324/447 IPC, we find no reason to interfere with such conviction.

Having modified the conviction, we sentence of the appellants to undergo Rigorous Imprisonment for 5 (five) years and to pay a fine of Rs.10,000 with default sentence of simple imprisonment for 6 (six) months for the offence under section 304 (Part-II) IPC. We however, do not interfere with the conviction and sentence of appellants under section 447/324/323 IPC. We also do not interfere with the impugned judgment as regards the compensation awarded by the learned Sessions Judge. Substantive sentence of imprisonment shall run concurrently. Accordingly, the appeal stands partly allowed.

Appreciating the assistance rendered by Ms. S Bhuyan, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Bhuyan.

Send down the LCR along with a copy of this judgment.