High Court · 2012

On 18.5.03 at about 1-00 PM, accused Nur Islam, Saiful Islam and few oth 3. ers picked up a quarrel with Md. Maharuddin by restraining him on account of som e previous grudge. It was alleged that the accused Safiul Islam assaulted Mahar uddin by a iron pipe on his head causing serious injuries. The injured was shift ed to Moirabari Hospital for treatment and from there the injured was referred t o Nagaon Civil Hospital and therefrom to Gauhati Medical College Hospital. The i njured while undergoing treatment at Gauhati Medical College Hospital (GHCH), su ccumbed to the injuries on 19.5.03 at about 8-00 PM. To the aforesaid effect, a n FIR was lodged by one Abdul Kasem, (PW.1), before the Moirabari PS on 20.5.03.

4. On receipt of the FIR, a case was registered and investigation was launc hed. During the course of investigation, the Investigating Officer recorded the statement of the witnesses, carried out the inquest of the dead body of the dece ased, and on completion of the investigation submitted charge-sheet against the accused-appellants under Section 341/302/34 IPC.

5. During the trial, learned Sessions Judge, Morigaon, finding prima-facie material under Section 341/34 IPC and under Section 302/34 IPC against the accus ed-appellants, framed formal charges against them. On reading over and explaini ng the charges, all the accused facing trial pleaded not guilty and claimed to b e tried. The prosecution side examined as many as 9 witnesses including the Inves 6. tigating Officer and the Medical Officer of the case. On completion of the reco rding of the prosecution evidence, learned Sessions Judge recorded the statement of the accused persons facing the trial under Section 313 CrPC. The accused-ap pellants facing the trial took the stand of total denial and further declined to adduce evidence in defence.

7. On conclusion of the hearing, learned Sessions Judge convicted the accus ed-appellants as aforesaid, giving rise to this appeal. However, accused Ms. As ia Khatun was acquitted from the charges by the learned Sessions Judge, for want of evidence against her.

8. We have heard the submissions advanced by Mr. FKR Ahmed, learned counsel appearing on behalf of the appellants and Mr. S. Das, learned Additional Public Prosecutor, appearing for the State. Learned counsel for the appellants strenuously submitted that the prosec 9. ution miserably failed to substantiate the charges leveled against the appellant s. Learned counsel further pointed out that there are major contradictions in t he evidence of PW.1, 2 and 3 vis-à-vis independent witnesses, PW.7. Learned coun sel for the appellants submitted that PW.7, who was a retired school teacher, ma de it clear in his deposition that on hearing hue and cry, when he rushed to the place of occurrence and found injured Maharuddin (deceased) he was capable of s peaking and heard the victim pronouncing the name of Saiful, who had assaulted h im on his head. Learned counsel for the appellants has submitted that aforesaid fact was misconceived by the learned trial Court, while appreciating the eviden ce of PW.1 and 2.

10. Mr. S. Das, learned Public Prosecutor, on the other hand, submitted tha t the prosecution has been able to prove the charges against the accused-appella nt beyond all reasonable doubt and accordingly, there is no scope to interfere w ith the findings of the learned trial Court.

11. In order to appreciate the submissions, advanced by the learned counsel for the parties, we would like to depict here-in-below, the core of the prosecut ion evidence.

12. PW.1, Md. Abdul Kasem at the time of the incident was in the residence o f Hazbur Moullana, which is about 200 yards away from the place of occurrence. According to PW.1, on hearing hullah from the house of Maharuddin, PW.1 ran towa rds the place of occurrence. At the place of occurrence, he noticed that Nur Is lam was catching hold of Maharuddin with full pressure. In the meantime, Saiful Islam gave a blow on the head of Maharuddin with a piece of pipe which was 4/5 feet in length. As a result of the impact, Maharuddin fell down on the ground. Without wasting time, PW.1 took the injured to Moirabari hospital in a pushcar t. PW.1 was accompanied by Safaruddin, Jakir and Husen Ali of the village. PW. 1 stated that the doctor of the Moirabari hospital referred the victim to the Na gaon hospital and at Nagaon the injured was advised to be taken to Gauhati Meedi cal College Hospital. Though, the injured was taken to GMCH, but he succumbed to injuries on 19.5.03 at 8-30 PM while undergoing treatment. Accordingly, PW.1, lodged the ejahar before the police on 20.5.03.

13. PW.2, Md. Safiruddin is another eye-witness of the occurrence. Accordin g to PW.2, on 18.5.03 at about 12/1-00 PM, while he was standing on the road, he saw accused Nur Islam and his wife Josnara restraining Maharuddin and Saiful wa s being called to come with ’Jathi’. PW-2 revealed that Saiful brought a piece of pipe about 4-5 feet in length and gave a blow with that pipe on the head of M aharuddin and Maharduddin fell down sustaining bleeding injuries. Involvement o f accused Nur Islam, Josnara in restraining Maharuddin and assaulting Maharuddin by Saiful has been witnessed by PW.2, who was present near that place of occurr ence. According to PW2, he saw Jakir Hussain, Abul Kasem, Husen Ali and Minara K hatun and many others coming to the place of occurrence thereafter.

14. PW.1 was also seen coming to the place of occurrence by PW.2. PW.2 found only accused Nur Islam catching hold of Maharuddin with pressure and found Saif ul assaulting Maharuddin, by a piece of pipe on the head of Maharuddin.

15. The evidence of PW.2 further shows that seeing Maharuddin, being assault ed, when he attempted to go near the place of occurrence, he was restrained by h is nieces. Although, PW-3 Mustt. Minara Khatun, wife of deceased Maharuddin claim 16. ed to have seen the occurrence, but in cross-examination, PW.3 clearly shows tha t before her arrival, witnesses like Abul Kasen, Jakir, Safaruddin were standing there by the side of her injured husband. Evidence of PW.1, Abul Kasem, PW.2, Safaruddin shows that they found accused Saiful assaulting Maharuddin, and at th at moment, they appeared, and this being the position, PW.3 coming to the place of occurrence after arrival of those two persons, cannot be expected to see the occurrence of assault. PW.3 further appears have exaggerated the story to the extent of saying that she found Asia Khatun handing over the pipe to the accused , Saiful, by which according to PW-3 Saiful assaulted her husband.

17. PW.3 appears to be a witness, who came to the place of occurrence when h er husband was already lying in an injured condition and therefore, she cannot b e treated to be an eye-witness of the occurrence. Taking part by accused Asia K hatun in handing over the offending pipe was not stated by PW.2, who was all alo ng present since beginning of the quarrel; PW.1, who appeared at the place of o ccurrence on hearing hullah, also did not see.

18. According to Hasen Ali, PW.4, at about 12/1-00 PM on the date of occurre nce, he was in the house of Mahidul, for doing daily works, the house was situat ed nearby from the place of occurrence. According to PW.4, when he heard accuse d Nur Islam calling Saiful to the place of occurrence. He found Maharuddin being confined by Nur Islam, Joshnara and Saiful came to the place of occurrence with a piece of pipe taking it from the hand of Asia and Saiful gave a blow on the h ead of Maharuddin. PW.4 claimed to have witnessed the occurrence of confining M aharuddin by Nur Islam and Joshnara and assaulting of Maharuddin by accused Saif ul by a piece of pipe.

19. However, in cross-examination, PW-4 who is a relative of the deceased cl early stated that before his arrival at the place of occurrence, other persons, namely, Jakir Hussain, Safarudin, Abdul Kasem, wife of Maharuddin and three othe r persons including accused Nur Islam, Joshnara, Saiful and one Sahera were alre ady present there.

20. PW-3, wife of Maharuddin could not be treated as eye witness because of belated arrival at the place of occurrence and therefore question of PW-4 witnes sing the occurrence who arrived after arrival of PW.3 do not arise and thus PW-4 cannot be treated to be an eye-witness. However, the evidence of PW-4 can be re lied on to the extent of his version that he found Maharuddin falling down on th e ground with injuries and the victim was taken to hospital by Jakir Hussain, Sa faruddin in a Thela (pushcart). PW.4 has also accompanied those persons in taki ng Maharuddin to the Moirabari hospital first, and then to Nagaon and therefrom, on being referred, to GMCH on the date of occurrence itself, where Maharuddin d ied on the following day.

21. Although PW.5, has also said about going to the place of occurrence, on hearing hue and cry and witnessing about confining Maharuddin by Nur Islam and J osnara and assault by Saiful by a piece of pipe taking the same from the hand of Asia, but his evidence further disclosed that before his arrival, many persons including Safiruddin, Minara Khatun, Hasen Ali, Abul Kasem and son and daughters of Maharuddin were already there. Since PW-5 arrived after arrival of Minara Kh atun (PW.3), Hasen Ali (PW-4), he cannot be also considered to be an eye-witness although he claimed to be so. His evidence only established one thing that he found Maharuddin (deceased) lying on the ground with injuries on the head wheref rom blood was oozing out. PW.5, Jakir Hussain, deposed that the victim, Maharuddin was not in a p 22. osition to speak when he arrived to the place of occurrence, who was, thereafter , taken to Moirabari hospital first, and then to Nagaon, and on the same day, t he injured was taken to GMCH, on being referred, where he died on the following day. PW.5 was present when inquest was done by police and witnessed preparation of the inquest report (Ext.2). Although the PW.5 denied about making any state ment before Investigating Officer that he found accused Josnara and Nur Islam ca tching hold of Maharuddin and Asia handing over a pipe to Saiful, but evidence o f PW.9, who is the Investigating Officer, has confirmed that PW.5 did not tell t he same during investigation. These vital omissions to state the facts before In vestigating Officer, appears to be a material contradictions in the evidence of PW-5 which taken away his credibility as an eye witness.

23. PW.7, Md. Suraj Ali, who appears to be a retired school teacher, being a ged 61 years, having his houses only at a distance of about 50/60 metres from th e place of occurrence, heard hullah at about 12/1-00 noon, and he went there and found Maharuddin lying on the ground with bleeding injuries on his head. PW.7 a lso found Safaruddin, Kasem, Hasen, Taizuddin and accused Nur Islam, Saiful, Jos nara, mother of Nur Islam at the place of occurrence, and on being asked, Maharu ddin hardly pronounced the name of Saiful about assaulting him. PW.7 has not cl aimed to be an eye-witness, and from his evidence itself it is clear enough that he only found Maharuddin lying in an injured condition at the place of occurren ce. Of course, uttering the name of Saiful by the injured himself has not been stated by any other witnesses like PW.1, PW.2, PW.3, PW.4 and PW.5, were already there before arrival of PW.7. Anyway, in the absence of corroborative evidence of other witnesses, who were also present, evidence of PW.7 can not be treated to have proved that Maharuddin was uttering the name of accused Saiful.

24. Evidence of PW-2, Safiruddin shows that while he was standing on the road near his house, he found accused Nur Islam and his wife Josnara restra ining Maharuddin and calling Saiful to come with ’Jathi’ by Nur Islam. PW.2 saw Nur Islam coming to the place of occurrence with a piece of pipe being 4/5 feet in length and giving a blow on the head of Maharuddin with that pipe. On the oth er hand PW.1, on hearing hue and cry came to the place of occurrence to witness accused Nur Islam restraining Maharuddin with full pressure and Saiful Islam giv ing a blow by a piece of pipe on the head of Maharuddin. PW.2 found accused Nur Islam catching Maharuddin with full pressure. Both PW-1 and PW-2 witnessed Maha ruddin being assaulted by accused Saiful by a piece of pipe, length of which wil l be about 4/5 feet only. The other witnesses, like, PW-3, PW-4, PW-5 and PW-7, who came to the place of occurrence from different nearby places a bit later, on hearing hue and cry, found Maharuddin lying on the ground with head injuries. PW-1 and PW-2 found Saiful coming to the place of occurrence with the pi 25. pe and assaulting Maharuddin on head. But from the above evidence, particularly the evidence of PW-1 and PW-2, it can safely be taken that when Maharuddin was going by the road near his house with the cow of the accused to the pound, he wa s restrained. On being asked by accused Nur Islam, accused Saiful appeared ther e with a pipe in hand, by which, he inflicted the deadly blow on the head of Mah aruddin.

26. According to PW-1 and PW-2 also, Maharuddin fell down immediately after receiving that blow on the head caused by accused Saiful. From the evidence on r ecord we find that Maharuddin was assaulted only once by the accused. According to PW-6, Dr. Amarjyoti Patowari, death of Maharuddin was caused due to the ante- mortem head injuries. From all the above evidence on record, it has clearly be en established that it is the accused Saiful, who assaulted the deceased once on his head by a piece of pipe, which caused the fatal injury. Now question arise s, whether accused Nur Islam and Joshnara, who allegedly restrained Maharuddin s hared the common intention to kill the deceased.

27. The evidence of PW.2 also clearly shows that on the day of occurrence, c ow belonging to accused Nur Islam, damaged paddy of Maharuddin. When Maharuddin intended to take the cow to the cattle pound, the occurrence triggered and he wa s attacked and assaulted by the accused. PW.1, has also reiterated and corrobor ated that the occurrence took place due to some grudge. PW.7, a co-villager corr oborated the testimony of PW.1 and PW.2 and stated that the cause of the inciden t between the deceased and the accused, was for taking the cow of the accused Nu r to the pound by the deceased.

28. Accused Nurul Islam and Josnara Begum are husband and wife and accused S aiful Islam is their son and thus they being close relatives, and members of the same family, apparently were together when the occurrence took place. The reaso n for restraining the accused was immediate release of the cow which was being t aken to the pound. Here, evidence of PW.2, who was all along present reflected t hat the victim was held by accused Nurul Islam with full pressure, in such a sit uation, by bringing accused Joshnara, wife of the accused Nur for restraining th e accused appears to us to be exaggeration in the testimony of the witness to ro pe in the entire family. Therefore, the evidence of PW-2 alleging wrongful restr aint by accused Joshnara, wife of the accused Nurul Islam, do not appear to be t rue trustworthy. We find that the evidence of the witnesses involving Josnara in the crime is nothing but over statement. More so, PW.1 in his evidence c ontradicting the statement of PW.2, another eye-witness clearly revealed that he did not see others in the place of occurrence except the two male accused perso ns. However, the facts and circumstances and the attending sequence of events s pell out that the immediate cause of the accused persons, namely, Nur Islam and Saiful, in restraining the deceased, was for taking of their cow to the pound by the deceased. With that end in view Saiful, who came with a piece of pipe, a he avy blunt weapon, inflicted the blow on the head of the deceased, which turned t o be fatal.

29. From the evidence of the witnesses, it clearly transpires that accused N ur Islam restrained and Saiful intentionally attacked and assaulted the deceased by means of a pipe, to resist the deceased from taking their cow to the pound. There was apparently common intention in between Nur Islam and Saiful in restrai ning and assaulting the deceased fatally.

30. Although the defence denied about the occurrence, but by putting a sugge stion to PW.1, the defence intended to put up a case that accused Nur Islam was also lying on the ground. By putting another suggestion to PW.2, the defence to ok the plea that injured Maharuddin chased to cut Nur Islam, when his crops were damaged by cow, and in connection with that Nur Islam was assaulted. From the above suggestion to PW.2, the defence has also admitted that there was allegatio ns that cow of Nur Islam damaged the crops of the deceased. Damage to the crop belonging to the deceased by the cow of the accused and the reason for which de ceased having been attacked by the accused while taking the cow to the pound, is not denied by the prosecution witnesses.

31. Although it is not the burden of the prosecution to prove such pleas tak en by the defence, but the Court is required to examine from the available evide nce on record, whether the charges under Section 302/341/34 IPC against accused Nur Islam and Saiful, in wrongfully restraining and killing Maharuddin in furthe rance of the common intention has been established by the prosecution, beyond al l reasonable doubt and/or any other offence is made out against them.

32. Keeping in view the facts and circumstances leading to the occurrence , we find that the accused Nurul Islam and Saiful have been found to be involved in the commission of offences alleged against them. However, we find that accus ed Joshnara has been unnecessarily dragged into the case, for alleged commission of offence and the prosecution failed to establish the charges against accused Joshnara Khatun, beyond all reasonable doubt. Therefore, accused Joshnara deserv es to be acquitted from the charges under Section 302/341/34 IPC.

33. Now, keeping in view the attending facts and circumstances leading to the incidence and the single injury inflicted over the person of the deceased, quest ion arises whether the accused Nurul Islam and Saiful are liable to be convicted under Section 302 IPC ?

34. The situation speaks out that appellants were interested only in havin g the cow back, which was being taken to the pound by the deceased. In doing so, the accused Nurul overpowered the deceased and called accused Saiful for help, since the deceased, who was resisting their attempt. Having said that we canno t ignore the fact that the deceased had sustained a head injury, caused by Saifu l, which ultimately caused his death. Hitting a person on his head may not have been with the intention to kill, but it would certainly show the (cid:28)intention of c ausing a bodily injury as was likely to cause death (cid:29), within the meaning of Sect ion 300 Secondly and Section 304 Part I IPC. The appellants -accused Nurul Islam and Saiful having assaulted the deceased in furtherance of common intention , w ith a pipe once, on the head was likely to cause his death. Therefore, the injur y in the circumstances itself tantamount to inflicting an injury, which was like ly to cause the death of the deceased.(see Abdul Nawaz v. State of W.B.,(2012) 6 SCC 581)

35. As regard the infliction of one blow injury on the deceased, judicial pronouncements reported in (2005) 11 SCC597 (Jeet Singh Vs. State of Haryana) ma y be referred.

36. In Jeet Singh’s case (supra), the Apex Court held as under:- \4. Going by the evidence adduced by the prosecution, we are not inclined to int erfere with the findings of fact entered by the Sessions Judge and the High Cour t. However, we find some force in the contention urged by the appellant’s counse l that the offence, if any, committed by the appellant may not come within the p urview of Section 302 IPC. It is pointed out that there was no previous quarrel or enmity between the appellant and the deceased and the quarrel had suddenly ta ken place due to the fact that the deceased Bawa Singh drove the tractor through his field and the sudden quarrel ensued because of the conduct of the deceased. It is also pointed out that the appellant was having a weapon with him and he g ave only one blow which unfortunately had resulted in the death of the deceased. It is contended by the appellant’s counsel that the offence would come within t he ambit of Section 304 Part I IPC. It is true that there is only one fatal inju ry on the head of the deceased. The appellant must have inflicted a blow on the head of the deceased because of the quarrel between the two. The appellant certa inly would have knowledge that his act would result in the death of the deceased . Hence, the offence comes under the purview of Section 304 Part I of the Indian Penal Code and hence we set aside the conviction of the appellant for the offen ce under Section 302 IPC and hold him guilty of the offence under Section 304 Pa rt I IPC and sentence him to undergo imprisonment for a period of 8 years. The a ppeal is disposed of as above. \

37. In the aforesaid decision, the Supreme Court while dealing with the impact of inflicting single blow, categorically came to the finding that the offence c ommitted by the appellant would come within the ambit of Section 304 (1) IPC ins tead of Section 302 IPC and accordingly, sentenced the appellant therein to unde rgo imprisonment under Section 304 (1) IPC.

38. Be that as it may, Exception 4 to Section 300 IPC would come to the resc ue of the appellants-accused Nurul Islam and Saiful, inasmuch as the act of the appellants even when tantamount to commission of culpable homicide will not amou nt to murder as the same was committed without any premeditation and in a sudden fight, in the heat of passion, in the course of a sudden quarrel without the of fender taking undue advantage or acting in a cruel or unusual manner. The prosec ution evidence sufficiently suggests that a scuffle had indeed taken place where the accused Nurul Islam and Saiful were trying to recover the cow, while the d eceased was preventing them from doing so. In the course of this sudden fight an d in the heat of passion the appellants assaulted the deceased once, which event ually resulted in his death. The act of the appellants-accused Nurul Islam and S aiful is, more appropriately, punishable under Section 304 Part I IPC instead of Section 302 IPC invoked by the court below. The appeal must to that extent succ eed. However, we do not find sufficient ground to interfere with the findings of the learned trial Court under Section 341/34 IPC against the accused Nurul Isla m and Saiful .

39. Having meticulously considered and appreciated the testimony of the pro secution witnesses, vis-à-vis, the medical evidence of the doctor pertaining to the description of single injury; and having regard to the judicial pronounce ments as discussed above , we are inclined to convert the conviction of the app ellants-accused Nurul Islam and Saiful from Section 302 IPC to Section 304 (I) I PC and further we hold that custodial sentence of 10 years each would meet th e ends of justice. However, in view of our above discussion we find that accu sed-appellant, Joshnara has been unnecessarily dragged into the case, for allege d commission of offence and the prosecution failed to establish the charges agai nst accused Joshnara Khatun, beyond all reasonable doubt.

40. Consequently, the conviction and sentence against the accused-appellant, Joshnara Khatun under Section 302/341 read with Sec.34 IPC, in Sessions Case No. 90/2005, is set aside and she is directed to be set at liberty forthwith. Since , Joshnara was granted bail by this Court during pendency of this appeal, the ba il bonds submitted on her behalf would stand discharged.

41. d above. In the result, the appeal stands partly allowed to the extent indicate

42. Send back the Lower Court’s records immediately.