High Court
Case Details
Crl.A. 314/2004 BEFORE THE HON’BLE DR(MRS) JUSTICE INDIRA SHAH The appellant ,herein, who faced the trial for the charge framed against him and another under Section 307 read with Section 34 IPC was convicted under Section 324 IPC and sentenced to undergo rigorous imprisonment for 2 years by the judgm ent delivered by learned Addl. Sessions Judge(Ad-hoc), Kamrup in Sessions Case N o. 222(K) 2000. The co-accused was acquitted by the learned trial Court. 2. The prosecution case, in brief, is that on the request of accused Sahino or Ali, Lat Mandal demarcated the boundary of the land between the accused and the victim. On 9.7.96 the accused persons removing their boundary post and ere cted boundary post encroaching the land of the Noor Mohammad . When Noor Mahamma d saw the post being revomed he called Muslim Ali and other villagers. The accus ed Nazim Ali aiming at Nazir Ali threw a spear with an intention to kill him . Nazir, however saved his life holding the spear which embedded in his right hand . The accused Babul Ali and Shahnoor Ali were with the accused Nazim Ali. The v ictim was shifted to local hospital where from he was removed to G.M.C.H. Ejhar being lodged by Md.Noor Mahammad Ali Hajo P.S. case No. 124/96 was registered an d on completion investigation chrge sheet u/s 326/307/34 IPC was laid against th e accused Nazim Ali, Md.Shahnoor Ali and Md Babul Ali. 3. The accused persons pleaded not guilty to the charge framed against them u/s 307 read with Section 34 IPC . During the pendency of the trial accused S hahnoor Ali expired and as such case proceeded against the accused Md.Nazim Ali & Md Babul Ali. 4. The prosecution examined 11 witnesses in all. The accused persons in the ir statements recorded under Section 313 Cr.P.C. denied all the allegations leve lled against them. No defence evidence was adduced. 5. ed appellant Nazim Ali was held guilty under Section 324 IPC as stated earlier. On conclusion of trial the accused Babul Ali was acquitted whereas accus
Legal Reasoning
6. P.W.1 Nur Mohammad deposed that prior to the incident arising out of b oundary of the land, it was demarcated by the lat Mandal with posts on the bound ary . In the night the accused persons removed the posts. Next day morning P.W 2. noticed that the post were removed and then he (PW 1) went to call the villag ers and on his return he saw spear pierced in the hand of his brother Nazir. Na zir told him that accused Nazim pierced the spear. The injured Nazir was then shifted to hospital. 7. P.W.2 Nizir Ali also stated that the boundary of land of the accused per sons were demarcated by Lat Mandal 15 days ahead of the incident by putting pos ts on the boundary. According to P.W.2 accused Shahnoor Ali with the help of his wife Suran Bibi removed the boundary posts. P.W.2 then called Muslim Ali (PW 4 ) and in presence of Muslim Ali Nazim Ali threw a spear aiming at him which he (PW 2) caught hold but it pierced in his right hand. He, further, alleged tha t Shahnoor Ali and Babul Ali had also beaten him. In the meantime, his brothers Samsur Ali and Noor Mahammad reached there and then the accused persons fled awa y. He was then taken to Hajo PHC for removal of the portion of spear embedded in his hand. The doctors at PHC could not remove the same and then he was brought to GMCH where the spear part was removed and he was medically treated. He, howev er admitted that the post on boundary was removed in the night itself and he did not see who removed the posts. He denied that he inflicted any injury to accu sed Nazim by means of spear. PW 3 Tuleb Ali, stated that initially there was altercation between B 8. abul Ali and Samser Ali and then Nazir Ali (Victim) came. After that Nazim Ali ( accused) arrived there and threw a spear aiming at Nazir which pierced in his right hand. PW.4 and others cut and removed the handle of the spear. Police came and removed the injured therefrom. According to him the incident occurred after arrival of Muslim Ali . He denied that accused Nazim suffered any injury. 9. PW 4 was president of village defence party . On his way to house of Na zim, he met Samser Ali who informed him that accused persons have removed fenci ng on the boundary of their land. PW 4 came to the place of occurrence alongwith Samser and asked him not to quarrel. He saw Babul(accused) coming out of his ho use and asked him why they had quarrel. He (PW 4) alongwith Babul came to place of occurrence and noticed bamboo fencing were removed and then he came to the v arandah of the house of Babul . He saw Shahnoor proceeding toward place of occ urrence suspecting that quarrel may take place, he went there. 10. The accused Nazim then came there with a spear which he pierced on the b ody of Nazir. Thereafter P.W.4 left the place . In cross-examination PW 4 stated that Noor Mohammad (PW 1) and Taleb Ali (PW 3) were not present at the time of incident. He (PW 4) however admitted that Nazir Ali (accused) also sustained ble eding injury in course of the incident but he did not see how he sustained the injury. Dr.S.C.Malakar (PW 5) examined the victim Nazir Ali at Hazo PHC and foun 11. d fresh lacerated wound in right little finger of 1.5 cm x 1 cm size. The injur y was fresh, simple and caused by blunt object . The doctor also found one spea r embedded in the hand but he failed to remove the same. He referred the pati ent to GMCH. According to him the injured himself came PHC. 12. PW 6 Abdul Ali, PW 7 Md Abbas Ali, PW 8 Tahidur Rahman, PW 9 Eunus Ali c ame to the place of occurrence after arrival of police there. PW 8 stated that h e heard that there was mutual fight between the two parties. PW 10 stated that h e heard that there was quarrel between Nazim and Nazir. The evidence of PW 6,7, 8 and 9 are hearsay and therefore not admissible . However PW 7, PW 9 are seizur e witnesses and admitted their signature on the seizure list, although the seize d article was not shown to them. 13. PW 1, S.I of Police investigated the case. He visited the place of occur rence, drew sketch map of the site and sent the injured Nazir to Hajo PHC, wher efrom injured was removed to GMCh. He arrested the accused Shahnoor and Babul b ut the accused Nazim was absconding. He stated that injured Nazir had undergone operation for removal of spear imbedded in his hand. The spear so removed was sent to police station through a Home Guard. PW 11, however, stated that inspit e of repeated attempts he failed to collect medical report from the GMCH and th ereafter he got transferred. Later on S.I Debeswar Das collected the medical r eport from Hajo PHC and submitted the charge sheet. 14. The evidence of PW 2 , the victim that it was accused Nazim who inflicte d injury to his hand by means spear is corroborated by PW 4, who is an indepe ndent witness. Although PW 3 claimed himself to be eye witness, his presence at the place of occurrence at the relevant time is doubtful inview of the evidence of PW 4, who categorically stated that PW 1 and PW 3 were not there. All oth er witnesses came later on. 15. If the evidence of PW 4 is scrutinized carefully it appears that accused Nazim also sustained injury during the course of occurrence. Interestingly enou gh the accused Nazim did not take any such plea while he was examined under Sec tion 313 Cr.P.C. None of witnesses except PW 4 noticed any injury sustained by t he accused. No question was put to them on this aspect. It was not the defence plea that the victim or his men were the aggressor.
Legal Reasoning
16. Mr.B.Ullah, learned counsel for the appellant at the threshold has submi tted that the learned trial court held that prosecution has failed to prove any case against the accused persons u/s 307/34 IPC and while acquitting the accused Bubul Ali, on the same set of evidence convicted the appellant u/s 324 IPC. Sin ce no charge was framed against the accused u/s 324 IPC, the conviction and sent ences passed against the accused under the aforesaid Section is bad in law. The trial court believing the uncorroborated testimony of the victim held the accuse d guilty. 17. ar to convict the appellant for a minor offence, even if no charge was framed. Per contra learned Addl.P.P., Mr.B.J. Dutta submitted that there is no b 18. The appellant and another were charged under Section 307 read with Secti on 34 IPC and the co-accused was acquitted on the ground that the prosecution fa iled to prove the charge against him. The trial Court’s finding is that the accu sed appellant committed the offence for which he is liable to be convicted u/s 324 IPC. Section 222 of Cr.P.C. says that (1) when a person is charged with an o 19. ffence consisting of several particulars , a combination of same only of which constitutes a complete of minor offence and such combination is proved, but t he remaining particulars are not proved, he may be convicted of the minor offe nce, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduc e it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. When a person is charged with an offence, he may be convicted of an at (3) tempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. 20. In the case of Bala Seetharamaiah Vs. Perike S.Rao & Other (2004) 4 SCC 557, cited by learned counsel for the appellant-, no charge under Section 302 IPC read with Section 149 IPC was framed. The accused were not told that they ha d to face the charge of being member of the unlawful assembly and the common obj ect of the assembly was to commit murder of the deceased. It was held (cid:28) Of cours e the mere omission to mention Section 149 may be considered irregularity, but f ailure to mention the nature of the offence committed by them cannot be said to be mere irregularity. 21. There is no definition of minor offence in the Cr.P.C. or I.P.C. However minor offence within the meaning of 222 Cr.P.C. can be said when main ingredien ts of offences are common and one among them is punishable with a lesser sentenc e is minor offence. The accused appellant herein was charged under Section 307 read with Sec tion 34 IPC. Section 324 IPC reads as follows:- (cid:28)324 Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance , or by means o f any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by m eans of any animal, shall be punished with imprisonment of either description fo r a term which may extend to three years, or with fine,or with both. (cid:29) Section 307 in the Penal Code has been described as under :- (cid:28)307 Attempt to murder- Whoever does any act with such intention or kno wledge, and under such circumstances, that if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either descr iption for a term which may extend to ten years, and shall also be liable to f ine, and if hurt is caused to any person by such act, the offender shall be liab le either to (imprisonment for life) or to such punishment as is hereinbefore mentioned. Attempts by life-convicts. When any person offending under this section is under sentence of imprisonment for life , he may, if hurt is caused , be punished wi th death. (cid:29) Both Sections 307 and 324 are the offences affecting the human body. A ll essentials of murder except death of the victim are ingredients of an offen ce under Section 307 IPC which are :- The accused did the act. 1. That the act was done with intention or knowledge and under such circums 2. tances to cause bodily injury as the accused knew to be likely to cause death or that such bodily injury was the ordinary course of nature to cause death, or th at accused attempted to cause such death by doing any act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and (III) ath or injury That the accused had no excuse for incurring the risk of causing such de Thus, when an accused had inflicted injury or had done some act with suc h intention or knowledge he would be guilty of murder. If hurt is caused by t hat act he will be guilty for attempt to commit murder. 22. Section 324 IPC is penal section for voluntarily causing hurt by means of instrument for shooting, stabbing cutting etc. and voluntarily causing hurt is defined under Section 321 IPC. The offence under Section 324 IPC has the fol That the accused caused hurt to another person. That the hurt was caused by means of any instrument for shootin lowing ingredients: (i) (ii) g, stabbing or cutting etc. (iii) That the act was done with the intention to cause hurt to any person or with knowledge thereby that he is likely thereby to cause hurt to any person. Th e phraseology of Section 324 shows that the weapon used as an instrument for sho oting, stabbing or cutting or any other instrument must be such that it is likel y to cause death. To bring an offence under Section 324 IPC the instrument must be one, not which is liable but which is (cid:28)likely (cid:29) to cause death and there mus t be intention to cause hurt. 23. If the prosecution can establish that any person voluntarily caused hurt with intention to cause murder but death was not caused the person is liable to be convicted under Section 304 IPC. When, however, the prosecution fails to pr ove that there was any intention to cause death but establishes that hurt was caused voluntarily by instrument for shooting, stabbing cutting etc. the perso n can be convicted under Section 324 IPC. The main ingredients of both the offe nces are common and therefore Section 324 IPC is minor in comparison to Section 307 IPC. 24. Coming back to the present case it is in the evidence of victim as well as PW 4 that the accused Nazim inflicted spear blow causing the injury . However , from the evidence of PW 4 it transpires that the accused also sustained some injury though the accused did not raise any such plea. From the evidence of all the witnesses it can be gathered that there was dispute in connection with b oundary of the land between the boundary and the boundary fencing and post wer e removed . None had seen who removed the boundary although the informant and vi ctim alleged that the accused and his men removed it. Other witnesses i.e. PW 6 to 10 who came later and they heard that there was quarrel between both the part ies. Thus it can be gathered that the occurrence took place during the course of quarrel. No previous conviction of the accused was proved. The occurrence too k place 17 years ago. Therefore, it would not be proper to send the accused behi nd the bars after the lapse of 17 years. Considering all aspects in its entirety , it is quite expedient to release the accused or probation of good conduct for a period of one year and if he fails to maintain the good conduct he will be lia ble to pay a fine of Rs.3000/- which the trial Court will recover from him. 25. The accused shall surrender before the trial Court to execute the bond o f good conduct within 15 days . While maintaining the conviction under Section 324 IPC, the sentence is modified to execution of bond of Rs.3000/- to maintain good conduct for a period of 1 year in default to pay the fine of Rs. 3000/-. 26. 27.
Decision
This appeal is accordingly disposed of. Send down the LCR alongwith a copy of this judgment .