High Court
Case Details
Crl.A. 125/2006 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) This appeal is directed against the judgment and order dated 31.3.2006 passed by the learned Ad hoc Additional Sessions Judge, Lakhimpur, North Lakhimpur in Ses sions Case No.25(NL) 2004 thereby convicting the accused appellant under section 304 Part II IPC and sentencing him to suffer undergo rigorous imprisonment (’RI ’, for short) for five years with a fine of Rs.500/-, in default, to undergo fur ther RI for six months.
Legal Reasoning
Heard Mr. PJ Saikia, learned counsel appearing for the appellant. Also h 2. eard Mr. D Das, learned Addl. Public Prosecutor, Assam appearing for the State r espondent. The facts in brief as portrayed by the prosecution are that on 1.1.2004 3. in the evening at around 6 PM, one Mannas Ali (hereinafter to be referred to as ’the deceased’), the complainant’s son was beaten to death by Md. Samad Ali, Md. Abdul Jalil and Abdul Motleb by means of bamboo lathi. Accordingly, an FIR was lodged by Fazar Ali, father of the deceased, the complainant, on that day itself at Laluk Police Station. 4. After receipt of the FIR so lodged, a case was registered against all th e three named accused persons under Sections 302/34 IPC. Police started investig ation and during the course of investigation, police seized two pieces of bamboo from the place of occurrence allegedly left by the accused persons. Police held inquest on the dead body and statements of two witnesses, namely, Mustt. Jarina Begum and Md. Sahad Ali were recorded under Section 164 CrPC by the Magistrate. After completion of investigation, police submitted charge sheet against all th e three accused persons under Section 302/34 IPC. Learned trial Corut having con sidered the entire materials on record framed charge under the aforesaid section s against the accused persons. The charges so framed being read over and explain ed to the accused persons, they pleaded not guilty and claimed to be tried. 5. During the trial, prosecution examined nine witnesses including the doct or and the Investigating Officer. After closure of the prosecution witnesses, st atements of the accused persons were recorded under Section 313 CrPC wherein the y have denied their involvement in the alleged offence. Defence adduced no evide nce. Defence case is of complete denial. However, accused Samad Ali has stated t hat on the day of occurrence, the deceased passed lewd comments at his daughter and then he chased him but the accused got hit on the head by falling over a pil lar. Thereby the accused tried to project that it is not a case of homicidal dea th rather it is a case of accidental death. 6. Amongst the prosecution witnesses, prosecution relied on the evidence of PW 5, Jerina Begum, who is the only eyewitness to the occurrence. 7. Learned trial Court having scrupulously appreciated and analysed the tes timony of the prosecution witnesses, particularly, the eyewitness, Jerina Begum, PW 5 and upon hearing the learned counsel appearing for the parties arrived at the finding that the deceased died due to the single blow on the vital part whic h caused at the spur of moment without pre-existing enmity and therefore, it doe s not bring home the charge of murder punishable under Section 302 IPC, inasmuch as, the accused was provoked by the deceased by passing lewd comments at the da ughter of the accused Samad in an intoxicated state and the deceased also went t o the extent of dragging the daughter of the accused. In that situation, the cas e falls under Part II of Section 304 IPC. Learned trial Court also found that th ere was no pre-arranged plan between the accused persons to kill the deceased an d in view of the fact that PW 5 has specifically stated that accused Samad Ali a ssaulted the deceased in her courtyard with a bamboo lathi. The statement so mad e by PW 5 also tallied with the evidence of the doctor, PW 6, which reveals that on autopsy, he found no external injury except bleeding from the nose and on di ssection a sub-dural haematoma of 2 cm x 2cm seen in the frontal region of the b rain covering both the hemispheres and compressing the tissues underlying the ha ematoma. In the opinion of the doctor, cause of death was acute sub-dural haemat oma following head injury. Thus the learned trial Court acquitted accused Abdul Motleb and Abdul Zalil on benefit of doubt holding that both the aforesaid accus ed persons cannot be tied with the Section 34 IPC. 8. In the present case in hand, PW 5, Jerina Begum, who is the only eyewitn ess to the occurrence has clearly stated that on the day of occurrence at around 6 PM, after hearing commotion outside, she came out and saw accused Samad, Abdu l Zalil and Abdul Motleb chasing Mannas, the deceased. She has further stated th at accused Samad assaulted the deceased in the courtyard with a bamboo lathi. Th ereafter, other two accused persons also assaulted him. She forbade them from as saulting the deceased but they did not pay any heed to her request. She raised h ue and cry whereupon nearby people assembled there. According to her, after reco rding her statement by police she was taken to the court by police, wherein her statement was recorded by the Magistrate. She has also stated that her husband a nd his relatives told her not to speak the truth. PWs 2 and 3 also supported the evidence of PW 5. PWs 1 and 7, though were declared hostile by the prosecution but perusal of their statement made under Section 164 CrPC reveals that they sta ted before the Magistrate that on the day of occurrence PW 1 saw accused Samad c hasing the deceased with a lathi in his hand. Thereafter, he found the deceased lying outside their house. 9. Having carefully gone through the entire evidence as noted above, this C ourt is of the considered view that PW 5 saw the incident personally and gave tr ue picture of the entire episode, more so, her evidence is supported by PWs 2 an d 3. I do not find any gross infirmity except one or two minor discrepancies, so as to upset impugned conviction and sentence. Under such circumstances of the case and also after proper appreciation of the entire evidence on record, this C ourt is in full agreement with the views expressed and findings recorded by the learned trial Court and no interference with the impugned judgment and order is called for. Accordingly, the impugned conviction and sentence stands upheld and maintained. 10. 11.
Decision
In the result, the appeal fails and stands dismissed. Send down the lower court record.