High Court · 2012

We have heard Mr. HRA Choudhury, Senior Advocate assisted by Mr. M Alamgeer, Advocate for the accused-appellants and Mr. Z Kamar, learned Public Prosecutor, Assam for the State respondent.

03. The prosecution case is traceable to the FIR dated 27.06.2005 lo dged by one Md. Sahedulla with the Officer-in-Charge, Mikirbheta Police Station alleging that on that date at about 8.30 a.m. in the morning, the appellants and two other persons, namely, Md. Amsur Ali and Md. Ajgar Ali had been ploughing t heir land and when he (informant) and his son Fakaruddin went to their filed, th ey found a major portion of a ridge of their side had been cut. According to the informant, while, he along with the Headman, Md. Nur Jaman and Md. Hayaz Ali we re making queries about the matter, appellant No. 1 at the behest of appellant N o. 3 dealt a blow on the head of Fakaruddin Ali by a hoe seriously injuring him. The informant further alleged that the other accused-appellants present there a lso assaulted Fakaruddin, for which he was seriously injured and was taken to th e Simaluguri Primary Health Centre (Mikirbheta). On this information, Mikirbheta P.S. Case No.69/05 was registered under section 326/307/34 IPC. Eventually, charge was framed against the appellant Nos. 1 &2 un der section 302 read with section 34 IPC and appellant No. 3 under section 109 r ead with section 302 of the Code. They having pleaded ’not guilty’, were tried u nder the above provisions of law. At the trial, the prosecution examined twelve witnesses, including the Doctor, who had performed the post mortem examination a s well as the Investigating Officer. The statements of the accused-appellants we re, thereafter, recorded under section 313 Cr.P.C, for which they stood by their denial qua the charge. The appellant No. 1 & 2 added that just before the incid ent, Abdul Jalil (PW 5), Md. Sahedulla (PW 1) and Fakaruddin (deceased) quarrele d with them over the ridge in between the land of the parties, in course whereof , Abdul Jalil and Fakaruddin grappled the appellant No. 2 and while they were ro lling on the ground, PW 1 Sahedulla attempted to hit him (appellant No. 2) with a spade, but the blow fell on Fakaruddin resulting in his death. The defence exa mined Nurul Amin and Safique Ali to fortify this plea.

04. Before referring to the rival arguments, it is essential to draw a brief sketch of the evidence on record. PW 1, Md. Sahedulla deposed that the quarrel erupted from a boundary dispute. Ac cording to him, on 27.06.2005 i.e. the date of the occurrence, Ansur Ali and Akb ar Ali, son of Rafique Ali were cutting the boundary mark separating the adjacen t land of the parties. On seeing this, the witness went to the site along with N ur Jaman, Harej Ali and Nur Nabi. While all present were engaged in a discussion and the persons accompanying the witness had advised the appellant No. 3, who w as also present to settle the matter, Abdul Jalil, the son of the witness also a ppeared there and requested the appellant No. 1 not to cut the boundary. The wit ness stated that then at the instance of appellant No. 3, his son appellant No. 1, Ramjan Ali grabbed Abdul Jalil and fell him on the ground and assaulted him o n his face. It was, at this juncture that Fakaruddin (son of the witness) also a rrived at the scene and tried to mediate. At this, the appellant No. 3 ordered h is son appellant No. 1 to assault Fakaruddin, whereupon, he (appellant No. 1) ga ve a blow on the head of the deceased by a spade. This was followed by another b low also by different spade by appellant No. 2, Mansur Ali at the instigation of appellant No. 3, Rafique Ali. According to this witness, due to the assaults, F akaruddin sustained serious injuries and became unconscious and was taken to Mor igaon Civil Hospital. Though, eventually, he was taken to the Gauhati Medical Co llege and Hospital, he succumbed to the injures sustained on 29.06.2005. The wit ness affirmed that the FIR was lodged by him about the occurrence on the very sa me date. In his cross-examination, this witness, however, admitted that there was an alte rcation between him and appellant No. 3 for about 10 minutes before the incident .

05. PW 2, Md. Harej Ali, stated on oath that on the date of the occu rrence, Sahedulla (PW 1) had come to his house at about 8.00 a.m. in the morning requesting him and Nur Jaman to go to the field to see how the boundary of his land has been cut by the appellant Nos. 1 & 2. The witness stated that he along with Nur Jaman accompanied Sahedulla to his field, whereupon, he found the appel lant Nos. 1 & 2 cutting the boundary. The witness deposed that as he advised the brothers to settle the dispute, their father, Rafique, who was standing nearby, gave a blow on the face of Sahedulla. The witness stated that at that point of time, Fakaruddin also came to the place of occurrence, whereupon, the appellant No. 3, Rafique ordered his son, Ramjan, appellant No. 1 to finish him (Fakaruddi n) and, accordingly, he (appellant No. 1) gave a blow on his (Fakaruddin) head b y a spade. That appellant No. 3 kept on instigating his son, appellant No. 2, Ma nsur, who gave another blow on the head of Fakaruddin by a spade, on which the l atter fell down, whereafter, he was further assaulted by the appellant No. 2. Th is witness stated that the injured was, thereafter, taken home and then to the p olice station in a Thela and being referred by the Morigaon Civil Hospital was, eventually, shifted to the GMCH. In cross-examination, this witness stated that the village road was situated nea r the place of occurrence, where, about 20 persons had assembled. He further dep osed that he had implored the appellants not to fight, but to no avail.

06. PW 3, Ms. Taj Nehar Begum, the daughter of PW 1, Sahedulla testi fied that on the date of the occurrence at about 08.00 a.m., her father having s een that the boundary of the land being cut by the Ajgar and Amsur, went to call Harej Ali and Nur Jaman to take them to the field to settle the issue. The witn ess stated that she saw from a little distance that when her father along with H arej Ali and Nur Jaman reached the spot, the appellant No. 3 gave a blow to him (father). She stated that though, Harej Ali and Nur Jaman tried to settle the ma tter, the appellant Nos. 1 & 2 on the inducement of appellant No. 3 caught Abdul Jalil, her brother, who was also present at the spot. According to this witness , when her brother Fakaruddin reached the place of occurrence seeing the develop ments, the appellant No. 3 ordered his son to assault him. At this, the appellan t No. 1 gave a blow on the head of Fakaruddin by a spade and as the appellant No . 3 kept on instigating, the appellant No. 2 also assaulted him (Fakaruddin) by a spade, on which he fell down. According to this witness, after Fakaruddin had fallen down, he was further assaulted by appellant Nos.1 & 2. On seeing the assa ults, this witness tried to protect Fakaruddin by covering him, for which a lath i blow also fell on her hand. According to her, as the people from the neighbour hood assembled, the assailants left the place occurrence.

07. PW 4, Md. Nur Jaman stated on oath that on the date of the occur rence, PW 1, Sahedulla had come to his house to inform that the appellant No. 1 had cut his boundary mark on the field and requested him and Harej Ali to interv ene. The witness stated that he, thereafter with Harej Ali and Sahedulla went to the field, where the appellants were present. He stated that in course of the a ltercation over the cutting of the boundary mark that followed, the appellant No . 3 gave a blow on the face of Sahedulla. At this, Abdul Jalil and Fakaruddin al so reached the place of occurrence. Thereafter the witness suddenly heard a scre am (cid:28)Marilo (cid:29) (cid:28)Marilo (cid:29) and on turning to the sound he found Fakaruddin lying on th e ground with bleeding injuries on his head. On being asked, Harej Ali disclosed that Fakaruddin had been assaulted by appellant Nos. 1 & 2.

08. PW 5, Abdul Jalil deposed that on the date of the occurrence at about 08.00 a.m., he came to know that the appellants were cutting the boundary mark of their land. He stated that at this, his father Sahedulla along with Hare j Ali and Nur Jaman went to the spot and requested them (appellants) to restrain from their activities. On this, the appellant No. 3 gave a blow on the face of his father, Sahedulla. At that time, the witness also reached the place of occur rence. On seeing him, the appellant No. 3 ordered his son to assault him and the appellant No. 1, Ramjan did so. The witness further testified that as his broth er Fakaruddin also appeared in the scene and enquired as to why the appellants w ere assaulting his father and brother, the appellant No. 3 instigated the appell ant Nos. 1 & 2 to kill him (Fakaruddin). On this, in succession, the appellant N os. 1 & 2 assaulted Fakaruddin on his head by the blunt side of the spade, on wh ich he (Fakaruddin) fell down. The witness further stated that at that stage, hi s sister Taj Jehan came to the place of occurrence and fell on Fakaruddin to sav e him from further assaults. In cross-examination, this witness, while stating that Harej Ali and Nur Jaman w ere the only villagers who were present in the place of occurrence at the time o f the incident, deposed that at the time of assaults Fakaruddin was unarmed. He added that the appellant Nos. 1 & 2 kept on assaulting Fakaruddin even after he had fallen down on the ground being injured.

09. PW 6, Md. Nur Nabi’s evidence vis-a-vis the role of the appellan ts qua Fakaruddin is same as of PW 5. In cross-examination he, inter alia disclo sed that the place of occurrence was about 8 yards from the road.

10. oved as Ext. 1. PW 7, Md. Mahidul Islam is the scribe of the ejahar, which he pr

11. PW 8, Md. Chand Mamud, is a witness to the seizure of the spade, vide Ext. 2, on which he proved his signature, Ext. 2 (1). In cross-examination this witness clarified that the spade was seized from a field, which was near t he house of the appellant No. 3, Rafique.

12. . He proved his signature on the seizure list vide Ext. 2 (2). PW 9, Saiful Islam is also a witness to the seizure of the spade

13. h his signature thereon vide Ext. 5 (1). PW 10, Sri Angad Rajbongshi proved the inquest report, Ext.5 wit PW 11, Sri Dhaniram Bora, is the Investigating Officer, who had 14. conducted the investigation. While narrating the steps taken by him in that rega rd, he proved the sketch map, Ext. 6 and also the seizure list, Ext. 2 by which he seized the spade from the place of occurrence.

15. PW 12, Dr. Pradip Kumar Thakuria, who did the post mortem examin ation on Fakaruddin (deceased), in his evidence stated to have found the followi ng injuries on the dead body: - (cid:28)Injuries : (1) One lacerated injury of size 8 cm x 1.5 cm x bone deep present o ver the scalp over the front of parietal region towards the left side. (2) Contusion of size 8 cm x 6 cm present over the left temporo parietal region. (3) Skull - linear fracture of size 6 cm x 2 cm present over left temporo pariet al region placed obliquely. Membrane - subdural haemorrhage present over left cerebral hemisphere. Brain - except subdural haemorrhage no injury found. Other organs - healthy. (cid:29) He opined that the cause of death was as a result of the head injuries sustained . According to him, all the injuries were ante-mortem caused by blunt force impa ct. He proved the post mortem report, Ext. 8.

16. The evidence of the defence witnesses, Nurul Amin and Safique Al i are to the effect that on the date of the occurrence, while appellant No. 2 wa s ploughing his field, Abdul Jalil (PW 5) and Fakaruddin (deceased) went there a nd grappled with him and all of them fell down on the ground. At this stage, acc ording to these witnesses, Sahedulla (PW 1) attempted to hit the appellant No. 2 with a spade, which, eventually, hit Fakaruddin, a result whereof, he sustained injuries.

17. Mr. Choudhury has urged that in view of a boundary dispute betwe en the parties, wherefrom on the date of the occurrence, as the evidence on reco rd would establish, an animated quarrel had started, the appellants by no means could have been held to be the guilty of murder and, thus, the impugned judgment and order warrants interference in the interest of justice. The learned Senior Counsel has argued that even if the evidence of prosecution witnesses is taken a t its face value, the appellants were not the aggressors and, therefore, they ca nnot be attributed with any intention to kill Fakaruddin, who got hurt in the me lee. The learned counsel for the appellant has, therefore, insisted that, in cas e, the accused-appellants are not acquitted of the charge, at the most, they can be held guilty of the offence of culpable homicide not amounting to murder with in the purview of section 304 Part-II.

18. Mr. Kamar, in reply, has argued that the evidence of PW 1 to 6, who are the eye-witnesses to the incident being consistent and coherent about th e sequence of events leading to death of Fakaruddin, no interference with the co nviction and sentence is called for. Having regard to the proved fact that the a ppellants with a pre-meditated plan had cut the boundary line of the land of Sah edulla, PW 1 with the ultimate intention of committing violence, in case, they w ere restrained from doing so, the learned court below was perfectly justified in holding the appellant Nos. 1 & 2 guilty of murder under section 302 read with s ection 34 of the IPC and appellant No. 3 under section 109 read with section 302 of the Code.

19. We have duly analysed the evidence on record as well as the argu ments advanced. A striking conformity in the FIR about the incident and the evid ence of PW 1 to 6 is apparent on the face of the records. All these witnesses ha ve consistently deposed that at the instigation of the appellant No. 3, the appe llant Nos. 1 & 2 in succession assaulted the deceased with a spade on his head. That Fakaruddin succumbed to the injuries sustained in the incident is not dispu ted. The occurrence was precipitated by the cutting of the boundary mark of the land of Sahedulla, the father of the deceased by the appellants. All the above p rosecution witnesses have, in tandem deposed that as Sahedulla along with the tw o independent villagers, Harej Ali and Nur Jaman, on seeing these activities, re quested them to restrain therefrom, they retaliated and first assaulted Sahedull a and when his son Fakaruddin reached the place of occurrence without any furthe r provocation, attacked him with spade. The evidence is consistent that Fakarudd in, though unarmed, was in succession hit on the head by the appellant Nos. 1 & 2 on the continuous instigation of appellant No. 3, so much so that the assaults continued even after he (Fakaruddin) fell down on the ground seriously injured. Having regard to the weapon of assault and the portion of the body chosen to be hit twice, there is no manner of doubt that the appellants in a body had the cr iminal intention of eliminating Fakaruddin. The intervention of Sahedulla, Harej Ali and Nur Jaman with a request to the appellants to refrain from the act of c utting the boundary mark of the land of Sahedulla and the altercations that foll owed, in our opinion, could not have provided such a provocation that the appell ants could lose self control and assault Fakaruddin in a body on his head succes sively. The evidence of the prosecution witnesses that throughout appellant No. 3 kept on instigating his sons, appellant Nos. 1 & 2 to assault Fakaruddin, leav es no manner of doubt about their intention to murder him (Fakaruddin). The medi cal evidence discloses that the deceased suffered a linear fracture on the skull with subdural haemorrhage present over left cerebral hemisphere apart from lace rated injuries over the scalp in the front parietal region and contusion over th e left temporo parietal region. In the opinion of the Doctor, head injuries were the cause of death.

20. On a cumulative consideration of the evidence on record, we are, thus not persuaded to hold that the prosecution had failed to prove the charge of murder against the accused-appellants. Having regard to the progression of ev ents and their conduct and roles, we are also convinced that the assaults made b y them were not bereft of the intention to kill Fakaruddin. We have perused the impugned judgment and order and are in respectful agreement with the assessment of the evidence on record and the findings arrived at. The appeal lacks in merit and is dismissed. No costs.