High Court · 2012

On 17.07.2005 at around 7.30 AM, accused Bahadur Islam, who was taking shelter a t the house of Ahmed Ali and Isamuddin of Village Khanajan, hacked Kandu Miyan @ Kandu Seikh to death. FIR was lodged by one Abdul Rasid immediately after the i ncident before the North Lakhimpur police station. On receipt of the FIR, a case was registered and investigation was ensued. The accused was apprehended by the local people and members of the village defen ce personnel (VDP) and handed over to the police along with the ’dao’, which he used to commit the offence alleged.

3. The police arrested the accused and seized the ’dao’ from his possession . Police sent the dead body to the hospital wherein the post-mortem examination of the dead body of the deceased was carried out. On completion of the investiga tion, the investigating officer submitted charge-sheet under Section 302 IPC aga inst the accused-appellant. The case being exclusively triable by the Court of Sessions, the same wa 4. s committed to the learned Sessions Court at North Lakhimpur for trial. During t he trial, the learned Addl. Sessions Judge (FTC), Lakhimpur, finding sufficient materials to proceed in the case against the accused framed formal charge under Section 302 IPC. On reading over and explaining the charge, the accused pleaded not guilty and claimed to be tried.

5. The prosecution side examined as many as eight witnesses including the D octor and the Investigating Officer. On conclusion of the recording of the prose cution evidence, the statement of the accused under the provision of Section 313 Cr.PC was also recorded. Accused-appellant took the plea of total denial and de clined to adduce evidence, in defence. We have heard the submissions made by Ms. R.D. Mazumdar, learned Amicus 6. Curiae appearing on behalf of the appellant and Mr. D.Das learned Additional Pub lic Prosecutor for the State. Ms. R.D. Mazumdar, learned Amicus Curiae submitted that the prosecution 7. has not able to establish the charge against the accused-appellant beyond all re asonable doubt and as such, he is entitled to acquittal in the case, on benefit of doubt.

8. Mr. D. Das, learned Addl. PP strenuously submitted that the prosecution has been able to establish the charge under Section 302 IPC against the appellan t beyond all reasonable doubt, as such, the conviction of the appellant do not c all for any interference by this Court.

9. In order to appreciate the rival submissions advanced by learned counsel appearing for both the parties, we would like to depict herein below the core o f the prosecution evidence.

10. There is overwhelming eye witnesses to the incident, which took place on broad-day light. The weapon of assault was seized from the possession of the a ccused immediately after the occurrence and FIR was lodged soon after the incide nt.

11. PW.1, Abdul Rasid, the president of VDP of the Khanajan village, wherein the incident took place, stated in his evidence that on the day of the incident , at around 8-00 AM in the morning, when he was taking his breakfast, on hearing hue and cry, he rushed to the place of occurrence and found accused Baharul sta nding near the dead body with a ’dao’ in his hand. PW.1 recognized the dead body of Kandu Miyan. When PW.1 approached, the accused started running. After a hot pursuit, the accused was apprehended by the people assembled there and handed hi m over to the police at Silonibari outpost. PW.1 further stated that after handi ng over the accused, he filed written Ejahar (Ext.1) at the police station.

12. PW.1 was duly cross-examined by the defence counsel. As a local resident of the village, PW1 admitted that the accused was a short tampered youth and he used to get enraged over trivial matters. PW.1 further stated that he did not k now that the accused was a mentally imbalanced person.

13. PW.2, Jamaluddin, is another eye witness to the occurrence, stated in hi s deposition that on the day of occurrence at about 8-00 AM in the morning, when he was in his shop, deceased Kandu was taking tea in the nearby hotel. PW.2 als o went there on being called by Kandu, who offered him a cup of tea. After that Kandu went to take ’Beedi’ (local made cigar) from the shop of Hamid. At that ti me accused was standing near the shop with a ’dao’ in his hand. When Kandu enqui red the accused as to why he was roaming taking the ’dao’ early in the morning, then accused all on a sudden gave ’dao’ blows on the head of Kandu. As a result of which, Kandu fell down and thereafter accused gave repeated ’dao’ blows on Ka ndu. Thereafter, the nearby people and members of VDP assembled there and after a hot pursuit accused was caught and handed over to the police along with the ’d ao’. PW.2 was also a witness to the seizure of the ’dao’ by the police from the possession of the accused.

14. PW.2, in his cross-examination, categorically stated that accused is men tally sound person and he was not suffering from any mental disorders. However, according to him, accused was a short tampered youth.

15. PW.3, Md. Abdul Hamid, corroborated the facts stated by PW.1 and PW.2 in all material particulars and the offence committed by the accused i.e. dealing fatal blows on the person of the deceased by the ’dao’, which he was holding in his hand. After killing the deceased, the accused was standing near the dead bo dy.

16. ve that the accused killed the deceased by hacking him with a ’dao’. PWs.1,2 and 3 corroborated each other in all material particulars to pro

17. PW.5, Hazarat Ali, PW.6, Abdul Jabbar and PW.7, Harmuz Ali, came to the place of occurrence after the incident and found the dead body which was lying o n the ground. They also saw the accused being armed with a ’dao’ and encircled b y local people. According to evidence of the above noted witnesses, when people tried to apprehend the accused, he ran away and after chasing, the accused was a pprehended. Accused was tied up with a rope in nearby a tree after his apprehens ion, till the arrival of police. PW.7, also proved the seizure of ’dao’ from th e possession of the accused.

18. The Doctor, PW.4, Damarudhar Mili, who conducted autopsy on the dead bod y of the deceased, has opined that the deceased died due to multiple incised wou nds, as a result of shock and haemorrhage. During autopsy, the doctor found the following injuries on the dead body:- (cid:28)1) Incised would on throat, just below the chin, it was horizontal -size 3’ X 1 ‰ (cid:29). The great vessel were cut through. incised wound on temporal region of head on left side, it was oblique di 2) rection, skull bone exposed size 4 (cid:29)X 2 (cid:29). 3) levicle bone, size 1 ‰ (cid:29) X ‰ (cid:29). All the incised wounds were clotted with blood. (cid:29) Incised wound on anterior chest wall, left side horizontal 1 (cid:29) below to c

19. Doctor’s evidence has clearly supported the versions of the eye witnesse s. On a query by the Court, the Doctor has pointed out that the injuries were su fficient to cause the death of a person in ordinary course. It appears that the assailant gave repeated blows on the vital parts of the deceased. From the natur e and number of injuries sustained, it can be safely held that the assailant, i. e., the accused had clear intention to cause the death of the deceased. Hence, in the present case, it can be held that the death of the deceased is not only a culpable homicide but also amounts to murder.

20. The witnesses to the occurrence have conjointly stated that the victim w as killed by giving repeated ’dao’ blows by the accused. PW.5, Hazarot Ali, and PW.6, Abdul Jabbar are the witnesses to the seizure list (Ext. 9). The inquest r eport reveals deep cut mark on the left side of head and chest.

21. According to PW.8, the investigating officer, after getting information over telephone, made a GD entry and proceeded to the place of occurrence and exa mined the witnesses seized the ’dao’, used in commission of the offence. PW.8 he ld inquest over the dead body and seized the ’dao’ from the possession of the ac cused. From the evidence on record, it is crystal clear that the accused Baharu 22. l hacked Kandu with a ’dao’, as a result of which the victim succumbed to his in juries on the spot. The defence could not point out any contradiction in the evi dence of the eye witnesses of the case. Further, there is no evidence on record to hold that the witnesses were animical to the accused. Although the defence tried to make out a case that accused was insane at the time of occurrence, but has totally failed to establish that the accused was a mentally sick person at t he time of occurrence. The witnesses who were local villagers, ruled out of the accused being mentally imbalanced person, rather, they stated that the accused i s an ill tampered man.

23. From the overwhelming evidence on record, followed by arrest of the accu sed immediately after the occurrence and seizure of weapon of assault from the p ossession of the accused soon after the occurrence, all the way go to establish that the accused has committed the offence of murder punishable under Section 30 2 IPC.

24. In view of above, we do not find any sufficient ground to interfere with the findings arrived at by the learned Addl. Session Judge (FTC), Lakhimpur. Ac cordingly, this appeal filed by the accused-appellant from jail, stands dismisse d. Before parting with the judgment, we would like to appreciate the valuab

25. le assistance rendered by Ms. R.D. Mazumdar as Amicus Curiae in arriving at the above decision . Ms. R.D. Mazumdar learned amicus curie is entitled to her professional fees of Rs.4,000/-.

26. Send down the LCR forthwith.