High Court
Case Details
CRL.A(J) 7/2008 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA Jeherul Ali 1. Son of Nabab Ali, Resident of Village: Raha , P.S. Sorbhog, Dist. Barpeta, Assam. Nabab Ali 2. Son of Late Mansub Ali, Resident of Village: Raha , P.S. Sorbhog, Dist. Barpeta, Assam. -Versus- ndent. THE STATE OF ASSAM. . &.Appellants. ....Respo B E F O R E HON’BLE MRS JUSTICE ANIMA HAZARIKA Advocate for the appellant Amicus Curiae. : Mr P.D. Nair, Advocate for the respondent Addl.Public Prosecutor, Assam Date of hearing Date of judgment : Ms B. Bhuyan, : 19.09.2013 : 19.09.2013 JUDGMENT AND ORDER (ORAL) Heard Mr PD Nair, learned Amicus Curiae appearing for the accused appella nts. Also heard Ms B. Bhuyan, learned Additional Public Prosecutor, Assam for th e respondent State.
Legal Reasoning
2. This appeal is directed against the Judgment and Order dated 11. 10.2007 passed by the Sessions Judge, Barpeta in Sessions Case No. 109/2007 wher eby the learned trial court convicted the accused appellants under Section 304 P art II of the IPC and sentenced to undergo rigorous imprisonment (RI for short) for a period of 7 (seven) years and to pay a fine of Rs. 2,000/-, in default fur ther RI for 2(two) months. 3. The prosecution case in brief is that an FIR was lodged by one M d. Iyakub Ali before the Officer-in-charge (O/C for short), Sorbhog Police Stati on on 10.03.2006 contending therein that on 27.02.2006 during the day time, the goats belonging to the accused persons named in the FIR were grazing in the lentil cultivation of the Informant. Seeing the same, elder brother of the info rmant, Eusuf Ali while proceeding to chase away the goats, the accused persons s tood on his way, felled him on the ground by holding his hands and badly assault ed him by sitting on his chest. They also caused him severe injury by biting him all over the face. As a result of the assault, his brother died around 12.30 P .M. on 10.03.2006 i.e. on the day of lodging the FIR. It has also been conten ded in the FIR that the accused grievously assaulted the deceased due to which he sustained injury in the heart and died. As the informant and his family memb ers were busy with the treatment of the deceased, lodging of the FIR was delayed . 4. On receipt of the FIR, police registered a case being Sorbhog Po lice Station Case No. 73/2006 under section 341/325/302 IPC and started investig ation. After completion of the investigation, the police submitted charge-sheet against the accused persons under section 302 IPC. 5. The offence being exclusively triable by the court of Sessions, the learned Addl. Chief Judicial Magistrate, Barpeta committed the same to the court of learned Sessions Judge, Sorbhog, wherein the learned trial court after perusal of the materials on record framed charges under section 304/34 IPC agai nst the accused persons. The charges so framed being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 6. During the trial, prosecution examined as many as twelve (12) wi tnesses in support of the case including the informant, the wife and the mother of the deceased, medical officer and the investigating officer. However, defence adduced none. 7. After closure of the prosecution witnesses, the learned trial co urt recorded the statements of the accused persons under section 313 CrPC wherei n they had simply denied their involvement in the case. 8. The learned trial court after appreciation of the evidence of the prosec ution witnesses and materials available on record, passed the judgment of convic tion by convicting and sentencing the accused persons as indicated hereinabove. Hence the present appeal from jail. 9. In the instant case, there are three (3) eye witnesses, namely, PW 7 Jah ir Ali, PW 9 Rakibul Ali and PW 10 Siddique Ali. Others are only reported wit nesses. 10. PW 1 is the younger brother of the deceased. He has stated that on the day of occurrence, he was not present at the place of occurrence. However , in the evening, when he came home Rokibul and Mohibul told him that Nabab Al i and Jeherul Ali, the accused appellants herein assaulted his brother in the c ultivation land. Next day morning when he wanted to lodge an FIR, one Siddique t old him that an aged man assaulted his brother, so lodging of an FIR need not ne cessary. Hearing the same, he did not go for lodging the FIR. But after 10 days his brother expired. He further deposed that no treatment was given to his bro ther. Thereafter, he lodged the FIR in the Sorbhog Police Station. In the cross examination, PW 1 had stated that the deceased was not suffer ing from any disease, neither he took liquor nor he was suffering from hyperte nsion Only bite mark was found at lower left cheek and except that there was no other injury. He has further stated that he had quarrel with the accused for som e landed property. Suggestion put to him that his brother died due to taking of liquor on that day has been denied by him. 11. ame tune with that of PW 1. PWs 2 and 3, wife and mother of the deceased also deposed in the s In the cross examination, PW 2 has stated that occasionally her hus band was working as helper in vehicle. On the day of occurrence, her husband had headache, he took disprin tablet and went out for his working place. After retu rning home her husband claimed more pain in his head. She tied a cloth in his he ad and went for bringing doctor but before doctor came, he died. She had also st ated that they had no quarrel with the accused persons. 12. sed and found the following injuries: PW 4 is the doctor who held autopsy on the dead body of the decea (cid:28) One old cut injury is found over the left cheek size 2 cm X 2 cm X 1 cm. alp. One haematoma size is of 4 cm X 2 cm X 2 cm over the left side of the sc Membranes are found to be haemorrhagic. One subdural haemotoma is found over the bone of the brain. Clotted bloo d seen in the cranial cavity. (cid:29) In the opinion of the doctor the cause of death is intracranial haemorrh age as a result of head injury and injuries were antemortem. Ext. 2 is the post mortem report and Ext. 2 (1) is his original signature. In the cross examination PW 4 has stated that the old injury may be of 3 to 7 days ahead. He did not mention the nature of cut injury. It was not a sin gle injury. 13. PW 5 Ghanashyam Nath is the gaon burah of Barharid village where t he deceased and the accused appellants belong. He is a reported witness. He came to know about the incident later on when somebody told him. He had signed in th e inquest report. However, defence denied to cross examine PW 5. 14. uest report. Defence declined to cross examine PW 6 also. PW 6 Gafur Ali is the co-villager who had also signed in the inq 15. PW 7 Jahir Ali is an eye witness who has stated that the occurr ence took place at about 12/1 noon. He heard (cid:28)hulla (cid:29) of a woman. So he went th ere and saw the accused appellants fighting with Eusuf. One Siddique Ali disburs ed the quarrel. He also saw a bite mark on the left cheek of the deceased. About 9/10 days thereafter Eusuf died. In the cross examination PW 7 has stated that he saw the quarrel, Siddiq ue went ahead. The quarrel took place on the land of accused persons. After the quarrel the deceased moved well for 9/10 days. 16. PW 8 Babul Hussain is the brother-in-law of the deceased. He is also a reported witness. He saw bite mark on the left cheek of the deceased. How ever, he saw no external mark of injury on the person of the deceased. 17. PW 9 Rakibul Ali is another eye witness who had seen quarrel tak ing place between Nabab Ali, Jeherul Ali with Eusuf i.e. the deceased. Siddique disbursed the quarrel. He saw some injuries including the bite mark on the face of Eusuf. Eusuf also told that he was assaulted with blows. After 9/10 days Eusu f died. During cross examination, suggestion put to him that he did not see the occurrence has been denied. 18. PW 10 Siddique Ali is also an eye witness who has seen the quarr el taking place between the accused persons and the deceased. He has stated that while there was scuffling in between Jeherul with Eusuf, Nabab tried to disburs e the quarrel. He saw a blow given by Jehirul to Eusuf. He also went there and disbursed the quarrel between them. After a few days Eusuf died. In the cross examination he has stated that he had no knowledge about th e grant of Rs.50,000/- to the family of Eusuf who was his nephew. After the quar rel no case was filed by the family members of the deceased, but after his death the case was filed. 19. s to how Eusuf died. PW 11 is a reported witness. She has stated that she had no knowledge a 20. PW 12 Bhupen Sarmah is the Investigating Officer of the case who had received Ext. 1, the FIR. He registered a case and took up investigation. H e examined the informant as well as other witnesses. He performed the inquest o f the dead body and sent the dead body for postmortem examination. He also visit ed the place of occurrence and collected evidence. PW 12 arrested both the accu sed appellants and forwarded them to custody. After completion of investigation he submitted charge sheet under section 341/302/34 IPC against both the accused. In the cross examination, he has stated that in his inquest report he ha d mentioned that no new injury was seen. During investigation he came to know th at the land where occurrence took place was the land of Nabab Ali, one of the ac cused appellants. 21. Scanning of the evidence on record would reveal that there are t hree (3) eye witnesses who had seen the occurrence. The deceased was assaulted b y both the accused appellants. However, no external injury seen except some bite marks on the face and therefore, the family members of the deceased decided not to lodge any FIR against the accused persons who were their co-villagers. Howev er, after ten (10) days the deceased died due to severe pain in the head. As the re was no injury on the body of the person, the deceased was not given any treat ment. From the doctor’s evidence it is seen that the injury received by the dece ased was internal injury which was not seen from the out side. Some of the witn esses deposed that the accused persons assaulted the deceased and has given blo ws on the person of the deceased and that is the reason no injury was seen from outside on the body of the deceased. As the injury was caused internally due to the blows given by the accused persons, the family member of the deceased did no t lodge any FIR. It has come up in the evidence that the deceased himself did no t like to lodge the FIR as there was involvement of some elderly persons. Had th e deceased not died, the FIR would not have been lodged. The deceased was an you ng man of about 25 years of age only. It is a very unfortunate case that, for s uch a simple incident, the deceased had to lose his life. Considering the nature of injury and the evidence of eye witnesses the learned trial court has rightl y held that there was no intention to cause death of the deceased by the accuse d appellants and therefore, the learned trial court has convicted the accused ap pellants under section 304 Part II IPC. I find no reason to interfere with the judgment and order passed by the learned trial court. The appeal fails and is dismissed. 22. Send down the Lower Court Records. 23. 24. Before parting with the case, I would like to put on record the valuable assistance rendered by Mr P.D. Nair, learned Amicus Curiae in arriving at a decision as aforesaid. Accordingly, he is entitled to a professional fee wh ich is quantified at Rs. 5,000/-( Rupees five thousand) only.