High Court · 2012

2. The story projected by the prosecution is that on 3.7.1993 at ab out 7 pm, while Jalu Dewan, father of informant was returning home after attendi ng Namaj from a nearby Mosque, the accused persons Jamal, Amal, Ashraf and Mustt . Aymana Bewa, being armed with deadly weapon wrongfully restrained him on the w ay and caused grievous injuries on the person of Jalu Dewan for which he was rem oved to Chenga PHC and thereafter, in a critical condition, to Barpeta Civil Hos pital for treatment and finally referred to Gauhati Medical College & Hospital, where he succumbed to his injuries. His son Amanur lodged a written FIR with the Officer-In-Charge of Tarabari Police Station on 4.7.1993 which was received and registered as Tarabari P.S.Case No.59 of 1993 under Section 341/325/34 IPC. The I.O., during investigation, visited the place of occurrence, recorded the state ment of witnesses under Section 161 Cr.P.C. and seized one wooden lathi from the house of accused persons in presence of witnesses. The I.O. also seized two bam boo lathies during the course of investigation. The I.O.,who initially investiga ted the case was transferred, and his successor I.O. submitted charge-sheet agai nst all the four accused persons. The case, on being committed to the court of S essions, Barpeta charge was framed under Section 341/325/304/34 IPC against all the four accused persons. The charges being read over and explained to the accus ed persons, they pleaded not guilty and claimed to be tried. During trial, accus ed Ashraf Dewan expired and the case was dropped as against him. The prosecution examined in all 10 witnesses including the police officials to establish the ch arge against the accused persons. The defence examined two witnesses including o ne medical officer. A court witness was also examined during trial. The learned trial court acquitted the accused Mustt.Aymana Bewa and convicted and sentenced the other two accused persons Md.Jamal Dewan and Md. Amal Dewan, present appell ants as stated earlier.

3. Mr.Ahmed, learned counsel for the appellant, submits that there was no doubt, a physical clash between informant’s father, informant himself and his brother in one side and the accused persons on the other side and the lathi blow dealt by the sons of the deceased fell on the head of the deceased causing grievous injury and death ultimately. The father of the informant died on 4.7.1 993 after 48 hours from the time of alleged occurrence. No dying declaration was made by the deceased naming the accused persons responsible for causing the hea d injuries. The dying declaration was not made by the deceased before his death because he knew that the fatal lathi blow was dealt by none other than his sons who had no intention to kill their father but to prevent the accused persons fr om assaulting the deceased. Mr. Ahmed submits that accidentally lathi blows of d eceased’s son fell on his head. The learned counsel also submits that prosecuti on failed to prove the charge against the convict appellants beyond reasonable d oubt and the conviction was recorded relying on the interested, related and part isan witnesses without any corroboration by evidence of independent witness on m aterial particulars.

4. Mr. Das, learned Addl. Public Prosecutor, per contra, submits th at the ocular and circumstantial evidence are clearly against the appellants i nasmuch as the physical clash (marpit) admittedly took place between the members of the informant’s party and the accused persons. No third party was involved i n the marpit. The oral evidence also supports the circumstantial evidence provin g the charge beyond reasonable doubt against the accused persons. He, therefore, submits that the impugned order of conviction and sentence as awarded by the le arned trial court calls for no interference in appeal and the instant appeal is liable to be dismissed upholding the impugned judgment and order.

5. For arriving at a conclusion and decision let me first appreciat e the evidence of the important witnesses. The informant Md. Amanur was examined as P.W.4. He is one of the sons of the deceased. In his deposition he stated th at on the day of occurrence in the evening, his father was proceeding towards ho me from a mosque after attending Namaj. On his way accused Jamal, Amal and Ashra f restrained his father and assaulted causing severe injuries on his person. On hearing the cry of his father he alongwith his brother Hannan Dewan (P.W.5) rush ed to the place of occurrence to save his father. His father was brought home by them in an injured condition. They removed the injured father to Chenga PHC and Barpeta Civil Hospital for treatment. His injured father was referred to Gauhat i Medical College & Hospital where he succumbed to his injuries. The FIR was pr oved by this witness. It was marked as Ext.3. His signature on FIR was marked as Ext.3(1). This witness, in cross-examination stated that accused Amal institute d a case against him and others and in the said case they got acquittal. A sugge stion was put by the defence to this witness that there was a land dispute and a quarrel between the accused Amal and deceased Jalu ensued and he (Hannan) as so n of the deceased while trying to inflict lathi blow on the accused Amal dewan, the blows accidentally fell on the head of Jalu Dewan and as a result Jalu Dewan died. This suggestion has been denied by this witness. From the suggestion put by the defence on both P.W 4 and 5, it appears that the defence admitted that a quarrel leading to marpit and death of Jalu Dewan took place but the defence had taken the plea that the fatal lathi blow fell on the deceased accidentally w hile the sons of the deceased gave the lathi blow on the accused persons.

6. P.W.1, Musstt. Rup Bhanu is the wife of the deceased. She depose d that while her husband was returning home after attending Namaj from a nearby Mosque, accused Amal, Jamal and Ashraf caught hold her husband and assaulted him with lathies. Her husband was taken to Chenga PHC , Barpeta Civil Hospital and finally to Gauhati Medical College & Hospital for treatment but he succumbed to his injuries. She further deposed that all the accused persons are her brother s-in-law and they had some dispute. She heard the cry of her husband and saw he r son Hannan, co-villager Samsul and Maher with her husband. She saw her husband running towards the house of Gani and falling down in front of Gani’s house. Th en she saw the accused Jamal assaulting on the head of her husband. She witnesse d the incident of assault from a distance of 30/80 hath. She saw no arms in the hand of her son Hannan but she saw lathi in the hand of the accused person. She saw no injury on the person of accused Amal. She denied the suggestion of the d efence that lathi blows given by her son Hannan fell on the head of her husband instead on the person of accused Amal. She also denied the suggestion that due to darkness she could not notice who actually gave the lathi blow on the person of her husband. She also denied the suggestion that she did not tell the I.O. wh at she actually saw in her own eyes. P.W.6 Samsul Mia is an independent witness . His evidence is that while he was taking meal at about 7 pm, he heard hulla an d went to the place of occurrence. He saw a fight between Amal and Jalu. They we re tussling with each other. Some one hit him on the back side from behind. Out of fear he left the place. In cross-examination he stated that from his voice he could learn the presence of accused Amal although it was already dark at the ti me of occurrence. However, this witness said that he does not know who assaulted whom.

7. P.W.2 and 7 are seizure witnesses. They have stated that police seized one wooden lathi from the house of accused person. P.W.8 is a police S.I. He stated that he did not investigate the case and he was not the I .O. of the case.

8. P.W.9 is the Officer-In-Charge of concerned Police Station. He t estified that the charge of investigation was given to S.I.Rebokanta Das. The sa id I.O. visited the place of occurrence and seized two lathies made of split bam boo. The said I.O. Rabokanta Das has expired. This witness stated that he was tr ansferred and in his place one Surendra Nath Choudhury joined. The I.O. Rebokant a Das was transferred while he was working as In-Charge of the Police Station an d the case diary was handed over to Surendra Nath Choudhury, who concluded the i nvestigation and submitted the charge-sheet. In cross examination this witness s tated that he knows the handwriting of Rabokanta Das. The injured person came to the police station in the evening at 8.45 pm on 3.7.1993. He further stated tha t the accused Amal Dewan instituted a case against Jalu Dewan’s sons Md. Hannan Dewan and Ashraf Dewan complaining assault on him. Accused Amal was also sent t o Hospital. This witness testified that I.O. Rebakanta Das recorded the statemen t of Amal Dewan, Samsul Haque, Rup Bhanu Nessa and Kassim Ali on 4.7.193. The co urt, on the request of I.O., added offence under Section 304 IPC. The seized ar ticles were not seen in the court. This witness clarified that the I.O. did not record the evidence of witness Hannan Dewan. So also the statement of Amanur Dew an was not recorded.

9. It is found that Rebakanta Das, the I.O., who initially investig ated the case, could not be examined as a witness during trial as he had already expired. There is no evidence led by prosecution that the seized articles namel y two bamboo lahtis were sent for chemical examination to ascertain whether they contained human blood stains. It was expected that as the said seized lathis we re used for assaulting the deceased, the I.O. should have sent them for FSL tes t. The prosecution failed to take the opportunity of proving the basic fact that the seized lathis were used for assaulting the deceased. The seizure witness st ated in their evidence that police seized one wooden lathi. There is , therefore , a contradiction in the evidence of O.C., P.W.9 and the evidence of seizure wit nesses.

10. The prosecution attempted to prove the case mainly on the basis of the evidence of P.W.1, 4 and 5 who are wife, informant son and another son of the deceased respectively. They are all related, interested and partisan witnes ses. All of them rushed to the place of occurrence and saw the accused persons. They found the victim in an injured state. They also categorically stated in the ir evidence that the deceased was assaulted by the accused Jamal, Amal and Ashra f. As per their evidence they are not sure who actually assaulted the deceased b y lathi. But they are sure that the accused persons are responsible for causing grievous head injuries on the deceased. The question is whether the evidence of P.W.1, 4 and 5 being interested and related witnesses, could be relied upon and based for conviction of the accused persons. There is no law that the evidence of related and interested witness should not be believed or taken into account for conviction of the accused. The only rule is that the evidence of related and interested witnesses should be scrutinized carefully and the court should insis t on corroborating oral and circumstantial evidence. The law is well settled in State of U.P. -vs- Vinod Kumar and another, reported in AIR 1992 S.C.1011, wher ein it is held that mere interestedness by itself is not a valid ground for disc arding or rejecting the sworn testimony of nor can it be laid down as an invari able rule that evidence of interested witness can never form the basis of convic tion. What all that is necessary is that the evidence of interested or related w itnesses should be subjected to a very careful scrutiny with extreme care and ca ution and if on such scrutiny the testimony is found to be intrinsically reliabl e then that evidence may be relied upon in the circumstance of the particular ca se to base a conviction thereon.

11. Here is the evidence of independent witness namely Samsul Mia , who was examined as P.W.6. In his evidence he has proved that there was a tussl e /fight between accused Amal and deceased Jalu. He could recognize the voice of accused Amal and deceased Jalu. Here is also the evidence of another independen t witness Md Mafizuddin Ahmed who was examined as P.W.3. As per his evidence Han nan Dewan gave a blow on the head of accused Amal. Amal fell down in the water. At that time Amanur came to the spot along with Jamal and Ashraf. This witness s tated that he lifted Amal and there he saw Jalu Dewan also lying on the ground c overed by water. He saw injury on the head and other parts of the body of Jalu D ewan. In cross examination he said that accused Amal fell down after he was assa ulted by Hannan Dewan. This witness, of course, stated that he did not see who a ctually assaulted deceased Jalu but he saw both Jalu and Amal being shifted to H ospital in a same ’thela’. It was little dark at that time. The water was knee d eep.

12. The presence of accused persons particularly Jamal Dewan, Amal D ewan and Ashraf has been proved. Participation of these accused persons in the t ussle /physical fight has also been proved by sufficient and cogent evidence. Wh at remains to be decided is who hit /gave the fatal blow on the head of the dece ased. Here it is to be noted that charge was framed against the accused persons u/s 34 IPC read with Sections 341/325/304 IPC. The question, who amongst the fo ur accused persons, gave the fatal blow and who should be responsible for causin g death, can not detain the court long from holding the accused persons guilty jointly and severally. The prosecution has been able to prove that at least thr ee accused persons namely Jamal, Amal and Ashraf (since deceased), participated in the criminal act who first attacked the deceased Jalu Dewan. The prosecution also proved that the accused persons had common intention to attack Jalu due to rivalry and dispute over land and it was not a sudden fight arisen due to sudd en provocation, rather from evidence it is found that the accused persons who we re from the same family, in furtherance of their common intention, attacked and assaulted deceased Jalu. The sons of deceased Jalu rushed to the place of occurr ence to save him but he was already given the fatal blow and laid on the ground. The accused persons cannot escape the liability of causing death to the decease d on the plea that there was no evidence as to who gave the fatal assault on the deceased. The present case comes under the group liability and therefore, all t he accused persons are liable to be punished under Section 34 IPC for committing criminal act with common intention. In my considered view the learned trial cou rt committed no error in holding the accused persons jointly liable and punisha ble with the aid of Section 34 IPC for committing the offence u/s 341/325/304 I PC.

13. The crucial point left for decision is whether the defence story t hat the lathi blow given by one of the sons of deceased who actually intended to hit one of the accused persons, accidentally fell on the head of Jalu, causin g serious injury and death to Jalu. The accused person wanted to escape from the liability on the ground and defence as stated earlier. For this purpose, accuse d persons examined D.W.1 Md. Surya Mia. His evidence is that a scuffle between J alu Dewan and Amal took place nearby the house of Gani Mia. Jalu Mia’s two sons; Hannan and Amanur, armed with lathis arrived at the scene and they hit on the h ead of accused Amal but the blows fell on the head of Jalu Dewan who fell down o n the place of occurrence. The accused Amal also fell down on the place of occur rence. He, with the help of Mafij, Bilal and Jabbar took Jalu Dewan to his house and shifted him to Chenga PHC. This witness also stated that Aman sustained th ree injuries on his head. According to this witness, Jamal and Ashraf Dewan were not present at the time of occurrence. The defence examined Dr. S N Talkukdar, the Medical and Health Officer, posted at Chenga PHC at the relevant point of ti me, as DW-2. He stated in his evidence that he found (i) one laceration over the right parietal region of sclap, size about 3 cm x 0.5 cm with bleeding. (ii) on e laceration over fronto-parietal region on mid line, size about 5 cm x 0.5 cm x 0.5 cm with bleeding, (iii) one laceration over right parietal region of scalp (stiched) size about 4 cm x stiched with oozing of blood and (iv) complains of p ain in the left thigh. In his opinion all the injuries were simple in nature ca used by blunt weapon. He proved the medical report and his signature on it marke d as Ext.A, Ext.A(i). In cross examination he stated that Md. Amal Dewan was adm itted as out door patient in the Hospital without the police requisition. The in jury no.1 to 3 were on head and all the injuries could be sustained on fall at a time by three different objects (blunt).

14. Accused Jamal Dewan in his statement under Section 313 Cr.P.C. stated /explained that on the date of occurrence he was in the house of one Asha ruddin. On returning home he came to know about the incident. The quarrel took p lace over grazing of Amal’s cow in the fishery of Hannan. Amal received head inj uries. Jalu received the head injury when the lathi assault meant for Amal fell on Jalu. The other accused , Md. Jamal Dewan in his statement under Section 313 Cr.P.C. also stated/explained that at the time of occurrence at about 7 pm while he was returning home from fishery, Jalu Dewan quarreled and scuffled with him alleging that his cow was grazing after entering into Jalu’s fishery. Jalu’s son Amanul and Hannan arrived armed with bamboo lathis and they assaulted him but the lathi hit fell on the head of Jalu. He sustained injury on his head and fell down unconscious. He also stated that he filed a case against Jalu, Amanul and Hannan. The said case was later on compromised. Deceased Jalu was his own brothe r. The convict appellant, therefore, pleaded not guilty.

15. In the facts and circumstances and in the evidence on record, th is court is called upon to decide whether the defence taken by the convict appel lant is believable and acceptable. In other words whether the other view as take n by the defence different from one taken by the prosecution is possible and acc eptable. More precisely, whether, based on the evidence on record, there was pos sibility of sustaining head injuries by the deceased Jalu by the assault of his own sons who arrived at the place of occurrence and while beating the accused Am al Dewan, the blow fell on the head of the deceased. The undeniable fact is th at both the prosecution and the defence examined at least one independent witnes s each. I have already appreciated the evidence of P.W.3 Sri Mofijuddin Ahmed wh o has been projected as an independent eye witness by the prosecution. Similarly I have also appreciated the evidence of DW-1 Md. Surya Mia who was set up by th e defence as an independent eye witness. I again have a look at the relevant por tion of evidence of the aforesaid two opposing eye witnesses. P.W.3 deposed that after Namaj in the Mosque, Jalu, while proceeding to his house, tried to go to the house of Gani walking through the water. At that moment accused Amal Dewan came out from the house of Gani. In the middle of the way they had a fight in th e mist of water. Then Hannan Dewan son of Jalu, over taking P.W.3, reached Amal and gave a blow on the head of Amal. Amal fell down in the water. From this piec e of evidence it appears that accused Amal was waiting for Jalu in the house of Gani and the said accused Amal attacked Jalu Dewan in a pre-planned manner. It i s conceivable that Jalu was un-prepared for any such attack and in fact accused Amal assaulted Jalu on his head. The accused Jamal was later assaulted by Jalu’s another son Hannan Dewan (P.W.5) and due to assault of Hannan, Amal also receiv ed injury on his head. The material evidence of the eye witness is that it was a ccused Amal who gave the blow on Julu’s head before his son Hannan Dewan and Ama nur Dewan arrived at the place of occurrence. The material circumstantial evide nce is that since Hannan Dewan reached at a subsequent stage after Jalu was alre ady assaulted by accused Amal and the other persons including Amanur Dewan arriv ed at the place of occurrence at the 3rd stage the eventual conclusion would be that there was no occasion of receiving or falling of the lathi blows on the hea d of Jalu Mia accidentally while Hannan Dewan and Amanur Dewan dealt blows on a ccused Amal. A careful reading of evidence of D.W.1 would reveal that at the 16. first stage, the physical clash took place between the deceased Jalu Dewan and Accused Amal. In the 2nd stage Jalu’s sons Hannan and Amanur came with lathis fr om a house situated nearby the place of occurrence and they gave the lathi blow on the head of accused Amal. The blow as per evidence of D.W-1 fell on the head of their father Jalu Dewan. For a better and clear appreciation and understandin g, an English rendering of deposition in the examination in chief of DW-1 is giv en below- (cid:28) The accident took place 9/10 years ago at 7 pm. A quarrel took place between J alu Dewan and Amal Dewan. Myself and Jalu Dewan were returning home after offeri ng Namaj. The quarrel took place between Jalu Dewan and Amal near the hosue of G oni Mia. Jalu Dewan’s son Hannan and Amanur brought lathi from the nearby house and assaulted on the head of Amal. The blow fell on the head of father Jalu Dewa n. Jalu Dewan fell down on the place of occurrence. Amal Dewan also fell down on the place of occurrence. Myself, Mafij, Bilal and Jabbar lifted both Jalu Dewan and Amal. We removed both Jalu Dewan and Amal to the house of Jalu Dewan and we poured water on their heads. They were shifted to Chenga Hospital and thereaft er we sent Jalu to Gauhati Medical College and Hospital. Jalu died in the Gauhat i Medical College and Hospital. Amal sustained three injuries on his head. At th e time of occurrence Jamal and Ashraf Dewan were not present &. (cid:29) 17. From the above evidence it is found clear that the quarrel first took place between deceased Jalu Dewan and accused Amal. Deceased Jalu’s sons, Hannan and Amanur arrived later on i.e. in the 2nd stage. This part of evidence is not in contradiction with the evidence of p.W.3 and DW-1. P.W.3 fairly stated in his evidence that he did not see who actually gave the lathi blow on Jalu De wan. He, however, stated that Hannan gave blow on the head of accused Amal. As p er evidence of D.W.1 the lathi blow dealt by his own son hit the head of Jalu De wan. The convict appellant for the first time took this defence in their statem ent u/s 313 Cr.P.C. On perusal of records it is found that the convict appellant never disclosed it to the I.O. or any police officer connected with the investi gation of the case. In my considered view they have taken this plea of defence a s a measure of afterthought. If it was correct that the blow given by Amanur and Hannan accidentally fell on the head of their deceased father the accused perso ns should have told the I.O. at the initial stage itself. On scrutiny it is foun d that the accused persons never made any statement in that regard before the I. O. u/s 161 Cr.P.C. In my considered view the defence plea as taken for the firs t time after the closure of recording of prosecution witness is not acceptable a nd it should be dismissed as untenable in law. As regards the evidence of DW-1 i t can easily be said that he was projected by the accused persons to substantiat e their plea of defence. This D.W.1 is a co-villager claiming himself to be an e ye witness. It was his moral and legal duty to disclose the truth at the very be ginning of the investigation of the case before the police official,more particu larly the I.O.Interestingly,D.W.1 did not even tell any co-villager about the re al incident witnessed by him that the deceased sustained head injuries due to la thi blow of his sons. A rustic witness and a cultivator by occupation like DW-1 is normally expected to disclose such truth before the villagers or at least bef ore the village headman to save his co-villager accused person. His evidence is not corroborated by any other co-villager. The status of DW-1 is nothing but one of a hired witness gained by the accused persons for their defence. Such a wit ness cannot be regarded as trustworthy and reliable. The evidence of such defenc e witness attaches no evidentiary value capable of destroying the evidence of t he prosecution.

18. Following the above discussion and reasons I do not feel it imp arative to focus my attention on the apparently possible two views. In my consid ered view no two views are possible in the present case. Neither it is emerged. The only possible view that could be taken is that the deceased Jalu Dewan recei ved head injury due to lathi blow dealt by one of the convict appellants during the quarrel/scuffle. There is no infirmity in the conviction and sentence as awa rded by the learned trial court. The conviction and sentence are upheld hereby. The impugned judgment and order awarding conviction and sentence against the app ellant is, thus, upheld hereby. Appeal stands dismissed.

19. The convict appellants shall surrender before the learned Addl. Sessions Judge (Adhoc) Barpeta for serving out the sentence and payment of fine amount forthwith, failing which the learned trial court shall take steps again st them in accordance with law. The bail bonds stand cancelled. Return the LCRs immediately.