Md. Ikram Ali vs State Of Assam And Anr

Heard Mr M K Hussain, learned counsel for the petitioner and Mr. N K Kalita, learned Addl. P.P. for the State/respondent.

The present appeal has been preferred challenging the legality and validity of the judgment and order dated 16.03.2019, passed by the learned

Assistant Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 8/2015, thereby convicting and sentencing the accused/appellant to undergo RI for a

period of one month with fine of Rs. 500/-, i/d 7 days SI for the offence under Section 341 IPC, to undergo RI for a period of 5 years with fine of Rs.

2000/-, i/d 3 months SI for the offence under Section 326 IPC and to undergo RI for a period of 10 years with fine of Rs. 5,000/-, i/d 6 months SI for

the offence under Section 307 IPC.

One Md Ataur Rahman lodged an FIR on 25.02.2011 with the Officer-In-Charge of Dhekiajuli Police Station, alleging, inter alia, that on 25.02.2011

at 8 am, his brother Mojibur Rahman was returning from the field towards the house and then near the house of one Sirajul Islam, all the accused

persons (10 in number) as per the direction of accused No. 1, Nurul Islam armed with dao, lathi, jung, khukri, iron rod, dagger etc. came out from the

jungle and attempted to kill his brother, Mujibur. Accused Ikram Ali stabbed his brother with a khukri at his belly, neck and other parts of the body,

resulting big cut injury at the back side of his neck and other parts of the body. When his brother tried to save himself from the stab of the accused

Ikram, the thumb finger of his left hand was cut off and fell down. The remaining accused persons also assaulted his brother with the weapons in their

hands and as a result, his brother sustained grievous injuries on several parts of the his body. At that time, hearing hue and cry of his brother, his elder

brother Motibur Rahman rushed the place of occurrence and attempted to save his younger brother and then the accused persons assaulted his elder

brother mercilessly. Sustaining injuries Motibur turned unconscious. Thereafter, the nearby people rescued his brothers and accused persons fled

away from the place of occurrence. Police of Borsola shifted his injured brothers to Dhekiajuli Civil Hospital and subsequently, Mujibur was shifted to

Guwahati.

Upon receipt of the ejahar, Dhekiajuli PS Case No. 69/2011, under Sections 341/147/148/149/325/326/307 IPC was registered and on completion of

investigation, the charge sheet was submitted against 10 accused persons under Sections 341/147/148/149/325/307 IPC and consequent to that,

learned JMFC, Tezpur committed the case to the Hon’ble Court of Sessions, Sonitpur, being the offence under Section 307 IPC, triable by the

Court of Sessions.

All accused persons faced the trial and denied the charges framed under Sections 341/147/148/149/326/307 IPC and claimed to be tried. During

trial, prosecution side examined as many as 11 nos. of witnesses, including the informant and the victim. Accused persons were examined under

Section 313 CrPC and their pleas of denial were recorded in separate sheet and kept with the record. The defence also adduced three witnesses in

their defence.

At the conclusion of the trial, the present accused appellant was convicted and sentenced as aforesaid and rest of the accused persons were

acquitted by the learned trial Court. Being highly aggrieved and dissatisfied with the impugned judgment and order dated 16.03.2019, passed by the

learned Assistant Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 8/2015, the the present appeal has been preferred by the appellant.

The learned counsel for the appellant has advanced his argument that there is no proper appreciation of evidence on record and the learned trial

Court failed to apply its judicious mind while arriving at the conclusion, which is contrary to the principles of criminal jurisprudence. It has also been

urged that the vital evidence of injured as well as the eye-witnesses suffered from glaring discrepancies and major contradictions, but the same has

been ignored by the trial Court. Further, the evidence adduced by the defence is not taken into account, which was adduced by the appellant/defence

side in consistent with their plea that due to certain dispute on the matter of cutting drain, the incident took place between the parties while the one of

the accused also sustained injury. The medical evidence adduced by the defence side as well as other defence witnesses has supported the contention

raised by the defence, which was, however, not considered by the learned trial Court. It is vehemently contended that the prosecution has failed to

prove the case beyond all reasonable doubt and the conviction and sentence is not sustainable in the eye of law.

Learned Additional Public Prosecutor for the State, Mr Kalita has submitted that the factum of injury sustained by the injured has been proved by

the evidence of the injured and other witnesses and it is their evidence that the accused attacked the injured with a khukri and as a result of such

attack and assault by sharp weapon the thumb finger of left hand of injured was severed and the same was amputated. Further, it is submitted that

irrespective of the discrepancy, contradiction of other witnesses, the evidence of the victim/ injured cannot be discarded, who has lost one of his

fingers (thumb finger) for the assault made by the accused and the entire prosecution case cannot be brushed aside.

Let us appreciate the evidence on record adduced by the prosecution as well as the defence side.

In the instant case, PW-1 is the informant and PW-5 and PW-6 are injured persons (all are own brothers). According to PW-5, on the day of

incident on 25.02.2011, while he was returning from the paddy field at about 8 am, four accused persons, namely, Ikramul (present appellant), Abbas

Ali, Babul Ali and Riajul Islam surrounded him on the road and the present accused appellant tried to strike on his head with a khukri, but as he

resisted the assault by raising his hand the thumb finger of his left hand was cut off. The other three accused persons also assaulted him with lathi, rod

etc. and he turned unconscious, the village people rescued him. He has not stated the name of the persons either of his brother or other local people

who arrived at the place of occurrence. His brother, PW-6, supporting the PW-5 has stated that he saw the occurrence from a distance about 100

yards from the place of occurrence and as he rushed to the place and caught hold of Mujibur, then the accused Abbas dragged him away and

assaulted him on chest and stomach. He has also stated that PW-5 lost his thumb for the assault made by Ikramul, accused appellant. Both these PW-

5 and PW-6 have denied in cross-examination that they have not stated before the IO all details of the occurrence. They have also denied about their

assault to Abbas Ali on the day of occurrence.

So far as the other witnesses like PW-1 (informant), he arrived at the place of occurrence after hearing hue and cry and saw that his two brothers

PW-5 and PW-6 were assaulted by all accused persons and both of them fell down on the ground in injured condition. He took both the injured to the

hospital with the assistance of various people and, thereafter, filed the FIR (Exhibit-1). PW-2, PW-3, both of them also claimed to be eye-witnesses of

the occurrence. They have also stated that the accused, Ikramul dealt a blow on the head of PW-5 with a khukri and as PW-5 raised his hand to resist

the blow, his left thumb was chopped off. It is also stated that all other accused persons attacked Mujibur with lathi, rod etc., while he arrived at the

place of occurrence. According to PW-2, he was walking behind PW-5, while the accused persons attacked him and PW-5 is his uncle. He has

denied the suggestion of petitioners’ side about the quarrel between PW-5 and one Abbas over the matter of cutting a canal and denied that he did

not state before the IO that he was walking behind PW-5 on the day of occurrence and saw the incident. PW-3 is also relative of the injured (cousin)

and denied the suggestion that he did not state before the IO that he saw the incident from nearby place.

PW-4 has no knowledge about the occurrence, save and except the fact that Mujibur was found lying in the ground and his left thumb was

missing. PW-8 was declared hostile by prosecution and he has denied any statement before the Police to the effect that he saw the occurrence.

However, PW-8, in cross-examination, has stated that there was a fight between Abbas Ali and Suleman (own brother of PW-5) regarding a water

canal at Balijan Pathar and over the dispute Suleman was chasing Abbas Ali through the field and there was a fight between the parties, including

Mujibur, who came to the place. However, the gathering people separated both the parties. Further, he has also stated that accused was not his

relatives, but co-villagers and he has no disagreement with his uncle Ataur and Mujibur and others. At the time of incident, he did not see Babul and

Nurul at the place of incident. He has specifically stated that there is an existing dispute between Abbas and Suleman, Mujibur, regarding the

mortgage of a plot of land at Balijan Pathar.

PW-9 claiming to be an eye-witness has stated that on the day of occurrence, he was returning with PW-5 from the field and after he entered into

his own house, while Mujibur was proceeding towards his house and immediately, thereafter, hearing some sound, he came out from his house and

saw that accused persons was beating Mujibur and as he was threatened so, he was unable to interfere. He also stated that due to assault made by

Ikramul, the left thumb finger of Mujibur was cut off, while he tried to protect himself from the assault. He has denied all the suggestion from the

defence side including that he is not an eye-witness to the occurrence.

PW-7 is the Medical Officer, an orthopaedic surgeon, who examined Mujibur on 25.02.2011 at Down Town Hospital, Guwahati, found clean cut

amputation of left thumb with exposed metacarpal bone with gross contamination. The amputated thumb was brought in unsterile plastic packet full of

ice. Age of the injury- 6 hours 30 minutes. Nature of injury was grievous. Ext. 2 is the Medical Report and Ext. 2 (1) is his signature.

In cross-examination, he stated that when the patient first came to their hospital his name was registered in the Emergency Register and after

admission his name was registered in the In-patient Register.

PW-10 and PW-11 are the Investigating Officers. PW-10 conducted the investigation and examined the witnesses, whereas, PW-11 has

submitted the charge sheet on the basis of investigation carried out by the PW-10. The statement made by PW-8 (who has been declared hostile by

prosecution) has been proved by PW-10 Further, PW-10 has confirmed the contradiction of the following witnesses:-

i) Witness Mukleswar Rahman (PW-2) did not tell him that he was walking behind Mujibur and saw the incident himself. He also did not tell him that

he was in the paddy field along with Mujibur. He also did not tell him that when Motiur came the accused persons beat him with lathi and kick.

ii) Witness Sulemanuddin (PW-3) did not tell him that he was tying his cows near the house of Sirajul and hearing hue and cry he went to the place of

incident and saw the incident. He also did not tell him that the accused persons left the place of incident after Mujibur became unconscious.

iii) Witness Mujibur Rahman (PW-5) did not tell him that at the indication of Nurul Islam to kill him, other accused persons namely Abbas Ali, Babul

Ali, Riajul Islam started hitting him with lathi, rod and sharp weapons. He also did not tell him that he was hospitalized at Down Town Hospital for 8

days and at Hayat Hospital for 28 days.

iv) Witness Motiur Rahman (PW-6) did tell before him that he went to the polace of incident on hearing his brother’s hue and cry. This witness

did not tell him that Abbas dragged him away from Mujibur and threw him on the ground, kicked him on the chest and stomach and he lost

consciousness.

v) PW-9 did not state before him that on the date of incident he and Mujibur were returning from the field together and, thereafter, he entered his

house and Mujibur was going from the down side of the “GORA†to his house and heard Mujibur shouting and he went of rushing and saw that

Ikram Ali, Abbas Ali, Khairul, Faruk Hussain, Riajul, Hanif Ali, Rajib were beating Mujibur.

So far as the evidence adduced the defence is concerned, it is to be noted that DW-1 is the doctor, who examined one of the accused Abbas on

the next day of occurrence, produced by Police and he found a stitched wound on the left side of chin and tenderness on the back, vide Exhibit-A is

the prescription and Exhibit-B is the Medico-Legal Register.

DW-2, Haniful and DW-3 Saiful Islam, both of them have given similar statement that on the day of occurrence while DW-2 was in the house of

Riajul (one of the accused), he saw that Mujibur was chasing Abbas with a spade in his house and Abbas fell down, while the gathering people

separated them. DW-3 also stated that hearing hulla on the backside of Riajul’s house on the day of occurrence, he went there and saw that

Mujibur (PW-5) struck Abbas with a hoe (spade), resulting in bleeding injury to Abbas. Their evidence remains unrebutted in the cross-examination.

After careful examination of the evidence adduced by prosecution, it is to be noted that although the PW-1 to PW-3 as well as the PW-9 claimed

to have seen the occurrence from close proximity, but their vital portion of evidence has been contradicted by the IO that they have not stated before

the IO, claiming to be the eye-witnesses of the occurrence. Moreso, PW-5 and PW-6, nowhere stated about the presence of these witnesses at the

time of occurrence, nor the fact that he was taken by these witnesses to the hospital as has been claimed by these witnesses. Thus, evidence of both

the injured witnesses, i.e., PW-5 and PW-6 are found to be exaggerated and they have also suppressed the genesis of the incident. Both these PW-2

and PW-3 are the close relatives of the injured as well as the informant and hence, their evidence coupled with the vital contradiction as proved by the

IO, cannot be safely relied on. In his cross-examination, PW-8 has admitted about the existing dispute between both the parties, which has raised

another occasion to raise suspicion about the authenticity of the related witnesses, PW-2 and PW-3. Similarly, the fact that the PW-9 accompanied

the PW-5 at the time of occurrence, is also not supported by the evidence of PW-5 at all, which again clouded the evidence of PW-9, who claimed to

be the eye-witness of the occurrence.

Further, there are serious infirmities in the evidence as regards the complicity of the accused persons. As per the FIR, 10 accused persons

assaulted PW-5 and PW-6, whereas, PW-5 has stated that he was assaulted by 4 accused persons and PW-6 and other witnesses has not mentioned

the name of the accused, but has stated in vague terms that “all accused persons†commit the offence. The learned trial Court, on due

examination of evidence on record and on appreciation of entirety of the matter, finding no any complicity of the other accused persons, has acquitted

them from the charge, which is found to be just and proper. It is to be noted that no appeal has been preferred against the order of acquittal.

On due examination of the allegation in the FIR, the evidence of injured persons, it will reflect that there is another serious inconsistency. As per

the FIR, the accused appellant inflicted various injuries upon Mujibur with sharp weapon on head, belly and other parts of the body, as a result of

which, he sustained serious injuries on backside of neck and several parts of the body apart from amputation of his left thumb, but the PW-5/the

injured has not stated about such injuries on other parts of his body apart from the shoving of the left thumb. The evidence of PW-7 (Medical Officer)

is totally silent as about any sort of injury on the person of PW-5, except the amputation of left thumb. There is also no supporting medical evidence

about the injury sustained by PW-6. If 10 numbers of accused attacked and assaulted the injured persons with large number of weapons like lathi, rod,

dao, khukri etc., there will be serious injuries on the person of the injured, which is not found in the present case. The totality of the evidence on record

is consistent with the fact that the PW-5 lost his left thumb in the said incident for the assault made by the accused appellant, which is also supported

by the medical evidence. The defence, however, could not hammer this vital point, except denial. Thus, an offence under Section 326 IPC is made out.

It is to be noted that it was the plea of the defence that there was a dispute on the fateful day over the matter of cutting a canal and the injured

Mujibur assaulted Abbas with a spade, resulting the injury, which was denied by the prosecution witnesses. But the defence has proved the said

aspect by adducing evidence including the medical evidence that Abbas sustained injury in the same incident. The defence witnesses are nowhere

related to the accused persons but are co-villagers, so, their evidence cannot be thrown out. The evidence of defence witness accepting at its face

value is consistent with the plea that there was a fight between the parties, resulting injury to both the parties. The evidence tendered by the defence

side cannot be termed as a tainted one for the reason of the factum that it was adduced by defence. The defence witnesses are entitled to equal

respect and treatment as that of the prosecution. It has been held by the Hon’ble Supreme Court in (2002) 1 SCC, 351; Munshi Prasad & Others

â€"Vs- State of Bihar and (2009) 3 SCC 779; CM Girish Babu â€"Vs- CBI, Cochi nth,at defence witnesses cannot always be considered as tainted

and should be treated at par with the prosecution witnesses, with standard of proof as reasonable standard.

There is no such rule of law that evidence of prosecution side is on higher pedestal than that of defence side. In the present case, the learned trial

Court has simply ignored the defence evidence without appreciating the legal as well as factual aspects of the matter, while arriving at the guilt of the

accused under Section 307 IPC.

Let us appreciate the provisions of Section 307 IPC, which reads as follows:-

Attempt to murder- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act cause death, he

would be guilty of murder, shall be punished with imprisonment of either description, which may extend to 10 years and shall also be liable to fine, if

hurt is caused to any person by such act and the offender shall be liable either to (imprisonment for life) or to such punishment as is hearing before

and mentioned.

In order to amount to an attempt to murder, the act attempted must be such that if not prevented or intercepted, it would be sufficient to cause death

of the victim. To sustain conviction under Section 307 the intention to kill should be clearly proved by circumstances like persistence of attack on vital

parts of the body or attacking with dangerous weapons or declarations made by him that the victim would be killed. For the purpose of Section 307,

what is material is the intention or knowledge, and not the consequence of the actual act done for the purpose of carrying out the intention. That

section clearly contemplates an act which is done with the intention of causing death but which fails to bring about the intended consequence on

account of the intervention of a cause operating independently of the volition of the agent. To determine whether an act falls within the ambit of

Section 307, on the wording of this section, three considerations appear to be essential (i) the nature of the act done, (ii) the intention or knowledge of

the agent, and (iii) the circumstances under which the act is done.

What the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned

in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established,

there can be no offence of “attempt to murderâ€. Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention

is to be gathered from all circumstances; and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is

used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into

consideration to determine the intention.

Attempt to murder vis-Ã -vis causing grievous hurt- An offence under Section 307 IPC is a very serious offence and it requires the same very factors

to be proved as are needed to prove an offence under Section 302 IPC, except that in this case the act falls short of the death of the deceased which

is necessary under Section 302 IPC. Sometimes, it becomes very difficult to differentiate between an offence under Section 307 IPC and others like

under Sections 324, 325, 326 etc. In both the cases, injuries may be there. There may be existence of motive or intention or knowledge on the part of

the wrong doer. Care has, therefore, to be taken that, in such cases there may not be wrong application of the evidence looking to the serious

consequences following from such an error; as the penalty prescribed under them vary to a great extent.

In the present case, there is dearth of evidence that the accused appellant intended to cause death of the injured and he failed to kill the injured.

No any serious cut injury was found upon the neck of the injured as alleged to reflect that accused intended to finish the life of the injured/PW-5.

From the plea of the defence side as well as the evidence adduced by them coupled with the evidence of PW-8 (cross-examination), it reflects that

due to the severe land dispute over a cutting of a nalla (drain), there was serious altercation between the parties and one of the accused Abbas also

sustained injury and in the same incident, PW-5 lost his left thumb of left hand for the cut injury inflicted by the present accuse appellant. In the

circumstances, the offence under Section 326 IPC is sustainable against the accused appellant, but the offence under Sections 341/307 IPC is not

made out.

In view of the discussions and findings, while maintaining the conviction under Section 326 IPC, the conviction under Sections 341/307 IPC is

hereby set aside. However, considering the fact that the accused is an old aged person above 60 years and considering the submission that he

remained behind the bar since the date of conviction and also under detention for more than 3 months during the course of trial, he is sentenced to the

period already undergone by him and fine will remain the same. Subject to payment of fine, the accused may be released.

The appeal is partly allowed as indicated above. Return the LCR forthwith.