High Court
Case Details
Crl.A. 257/2006 BEFORE THE HON’BLE MR. JUSTICE P.K. SAIKIA JUDGMENT AND ORDER This appeal is directed against the judgment dated 26.07.2006 passed by 1. the Learned Sessions Judge Cachar, Silchar in Sessions Case No. 19 of 2000 convi cting the appellant Sahab Uddin Khan of offence under Section 304 Part II and se ntencing him to rigorous imprisonment for 5 years with fine of Rs.1,000/- in d efault, to suffer for imprisonment for another 6 months and sentencing him to su ffer R.I for six months for under Section 324 IPC. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the app ellant Sahab Uddin Khan, hereinafter referred to as accused person, has preferre d this appeal citing several infirmities in the judgment, impugned. 3.
Legal Reasoning
The brief facts necessary for disposal of the present appeal is that one Tamij Uddin of village Poilapul gave his cow to one Dhanbir Singh of Kangali Ba sti within Lakhipur police station to rear on ’Bhagi’ basis. However, said cow w as found missing from the night of 28.04.1996. The cow was searched but it could not be located. Subsequently, said Dhanbir came to know that the cow was kille d by the accused Sahab Uddin and he sold the beef thereof to the public. 4. The Panchayat member Hakim also came to know about the same and called D hanbir to his village on 14.05.1996. The matter was thereafter reported to Tamij Uddin. He along with him Dhanbir went to the house of Md. Hakim. When they reac hed Lamina Hotel, Poilapul, accused Saheb Uddin Khan along with Abdul Hekim Khan , Abdul Matib, Abdul Rashid Khan and Ajir Uddin attacked Dhanbir and Tamiji Uddi n inflicting serious injuries on their persons. The injured were taken to Laboc Hospital where Dhanbir died on the next day. 5. An FIR to that effect on being lodged with O/C, Lakhipur Police Station, O/C, Lakhipur Police Station received the same, registered a case thereon and o rdered the matter to investigated by Police Officer. The Investigating Officer, who was entrusted to investigate the case, arrested the accused persons during t he course of investigation, visited the place of occurrence, sent the dead body to Silchar Medial College Hospital for postmortem. 6. He also examined witnesses and collected medical report and did other n eedful and on the completion of the investigation , he submitted the charge shee t under Sections 147, 148, 149, 324, 307, 302 IPC against five accused persons i ncluding accused/appellant Sahab Uddin Khan and forwarded them to court to stan d trial. The Magistrate before whom the charge sheet was so laid, committed the case to the court of Sessions Judge, Silchar since the offences u/s 307/302 IPC are exclusively triable by court of Sessions. 7. On receipt of the case on commitment, and after hearing of the parties, learned Sessions Judge, Cachar, Silchar framed the charges u/s 149, 302/149, 32 4/149 IPC and the charges, so framed, on being read over an explained to the acc used persons, they pleaded not guilty to the charges and claim to be tried. Duri ng trial, the prosecution has examined 12 witnesses including informant and Medi cal Officers. The statements of the accused persons u/s 313 Cr. PC were recorde d. 8. On the conclusion of the trail and on hearing arguments, advanced by the parties, while acquitting other accused persons, the learned Sessions judge, Si lchar, convicted the accused Sahab Uddin of offences under Section 324/304 Part- ii IPC and sentenced him to suffer imprisonment as aforesaid. It is that judgmen t which has been assailed in the present appeal citing alleged infirmities more than one. 9. Opening up the argument on behalf of the accused person, Mr. M. A. Rajbo rbhuiya, learned counsel for accused appellant, has submitted that the judgment, rendered by the Trial Court is unsustainable in law since the star campaigner f rom the side of the prosecution is found to be unreliable. In that connection, i t has been pointed out that the star campaigner from the side of the prosecution
Legal Reasoning
Mr. Tamij Uddin (PW.3) who is also one of the victims of the incident in questi on has drastically improved his version as the case proceeds from stage to stage . In support of such contention, it has been pointed out that before the p 10. olice he have implicated all the accused persons tried. During trial ,the prosec ution confined the allegations only on the accused appellant Sahab Uddin Khan. T his is fatal, according to the learned counsel for the appellants. In view of above infirmities in the prosecution case, the learned counse 11. l for the appellant has urged this Court to set aside the impugned judgment Furt her, the incident in question allegedly occurred in public place, which was noti ced by so many persons. Unfortunately, those witnesses were not examined and tha t too without assigning any reasons whatsoever. Quite surprisingly, prosecution confines its case too to those witnesses and acquit the accused of the offence u nder Section 304 Part II/324 IPC. On such argument Mr. B. J. Dutta, learned Addl . Public Prosecutor, Assam, contends that evidence rendered by the witnesses, mo re particularly P.W.3, does not suffer from any infirmity whatsoever. Rather the evidence rendered by them are quite consistent and clear. There is no material on record to disbelieve the evidence so rendered by the witnesses and therefore, the learned Trail Court came to a conclusion that the prosecution has proved th e charge under Section 304 Part-II/324 IPC. He, therefore, urged this Court to d ismiss the appeal upholding the judgment of the Trial court. 12. I have considered the rival submissions having regard to the evidence on record and also the judgment challenged in this proceeding. Before we proceed f urther, we find it necessary to produce the evidence of prosecution witnesses. 13. One Dr. K. K. Chakraborty, Associate Professor, Silchar Medical College was examined as P.W.8. According to him, on 15.05.1996 when he was working at Si lchar Medical College and Hospital, he examined dead body of one Dhanabir Singh, aged about 35 years and found the following :- (cid:28)Injuries: Stitched wound on the left lateral side of eye measuring 2x … x … cms. M 1) argins regular. 2) ed rubber drainage tube measuring 3x ‰ x 1 cm. Margins regular. 3) rgins regular. 4) t wall measuring 2 ‰ x 1cm x chest cavity. Margins regular. 5) Stitched wound on the left lateral side of abdominal wall 2 ‰ x … x … cm Stitched wound on the left forearm posteriorly 3 cm below the elbow join On tracing the path it pierced the pleura, entered the upper lobe making through and through wounds in lung 1 ‰ x 1 cm and then cut the pericardium and entered the left ventricle of heart making an wound of 1 x … cm x cavity of hear t. Margins regular. 6) s. Margins regular. 7) t 7 x 2 cm x bone deep with cut in bone . Margins regular. 8) 1 cm x scalp deep with cut in bone. All the injuries were fresh and antemortem and casusd by sharp weapons. The plea ural cavity contained about 2 ‰ litres of liquid and clotted blood. Opinion: The death was due to shock and haemorrhage as a result of ante mortem injury to the heart and lung caused by sharp weapon, homicidal in nature. Time passed sinc e death was 12 to 24 hours approximately. (cid:29) Cut injury upward portion of the occipital area of scalp in middle 5 ‰ Stitched penetrating wound on the left lateral and upper portion of ches Stitched wound on the left arm upper portion and medically with corrugat Stitched wound on the left arm in upper half laterally 6 x ‰ x 1 cms. Ma 14. n 14.05.1996, was examined as P.W. 12. His evidences are as follows : - Dr. G. Ekka, who examined Md. Tamij Uddin at Laboc Tea Estate Hospital o (cid:28)1) Sharp cut wound over the left scapular region. Bone depth. 2) Sharp cut wound over the right 3 rd intra-costal space penetrating in t he muscles. Injuries were fresh. The injured was admitted in the hospital on police requisition of Lakhipur P.S. on 14.05.1996 at 7.20 p.m. I worked with Dr. Patnayak and I know his handwriting and signature. Ext. 4 is the injury report of Dr. Patnayak written in the Injury Register of ho spital and Ext. 4 (1) is his signature. (cid:29) 15. P.W.3 Tamij Uddin, in his deposition stated that he gave a cow to deceas ed Dhanbir to rear it on (cid:28)Bhagi (cid:29) basis. The aforesaid cow had gone missing few d ays before the incident in question and the deceased reported it to PW 3. Therea fter he along with the deceased went to the house of Hekim, as later called the deceased to discuss the matter pertaining to the missing cow. On their way to Po ilapul village, they met accused Sahab Uddin Khan. On seeing them, the accused c harged both of them for making a false complaint against him. The P.W.3 denied m aking any false allegation against the accused. However, not being satisfied wit h such denial, the accused Sahab Uddin attacked them with a dagger and inflicted wounds on his (P.W. 3) back, chest and other parts of the body. 16. Accused Sahab Uddin then turned towards Dhanabir. Dhanabir then started runn ing away from such place and the accused too gave him hot chase, overtook and attacked him with the arms in his hand . Being so attacked Dhanabir fell down on the ground and lost his consciousness. Dhanbir and P.W. 3 were taken to Laboc T ea Estate Hospital by his brother where he later regained his sense. Meanwhile, he came to know about the death of Dhanabir. P.W. 3 specifically stated that non e except the accused Sahab Uddin assaulted them. In his cross-examination, P.W. 3 had stated that Sahab Uddin alleged that they had made a false accusation aga inst him. 17. P.W. 1, Moni Mohan Singh is the brother of the deceased. He is not an ey e witness to the incident in question and came to know about the same when he we nt to Laboc hospital and found his brother Dhanabir and Tamij Uddin in injured c ondition. According to him, Dhanabir died in the hospital the following day. 18. P.W. 5, Budhu Mia is the brother of Tamij Uddin. According to him, on he aring about the alleged incident, he came to the place of occurrence and found h is brother Tamij Uddin and Dhanbir lying injured at the place of occurrence. He took both of them to the Laboc hospital. While his brother recovered from injury , Dhanabir died the next day. P.W.4, Kamla Bibi, wife of Turpan Ali did not supp ort the case for which she was declared hostile by the prosecution. 19. P.W.6 is a witness to the seizure of dagger from the residence of accuse d Sahab Uddin. According to him, police recovered a dagger from the house of Sah ab Uddin, which it seized on the strength of seizure list Exhibit-2. Since he to o did not support the prosecution case in a way expected of him, he was also dec lared hostile. P.W. 7 is also a not an eye witness to the incident. He is found saying that he was told that accused Sahab Uddin assaulted Tamij Uddin and Dhana bir with a knife like dagger. 20. P.W.10, Sri Jahar Bora is the S.I. of police and the I.O. of the case. A ccording to him, on 14.05.1996, he was posted at Lakhipur Police Station. On tha t day, he received telephonic information to the effect that an incident occurre d in front of Laboc hospital. Receiving that information, he made necessary G.D. entry , rushed to such place and found that the injured were already removed to the hospital for treatment by local people. He, thereafter, prepared a sketch map of the place of occurrence which h 21. e proved as Ext.4. On 15.05.1996, accused Sahab Uddin surrendered at Lakhipur Po lice Station and also produced the weapon of offence before him which he seized on the strength of seizure list Ext.2. During the course of investigation, he re corded the statements of witnesses, did other needful and on the conclusion, he submitted the charge sheet against the accused person. 22. On perusal of the evidence on record, I have found that the is no quarre l over the fact that the deceased died on 15.05.1996 that he died for sustaining wounds which were ante-mortem in nature and that his death was homicidal one . Again, there is also evidence to show that P.W.3 Tamij Uddin too received woun ds caused by sharp weapon which were fresh in nature. 23. Now, we need to know who caused the death of Dhanabir or who inflicted t he injuries on the body of P.W.3 on 14.05.1996. On perusal of the statement of t he PWs, particularly of P.W.1, it appears that on the fateful day the deceased w ent to the place of the accused person and got involved in a quarrel. The eviden ce of P.W.3 further reveals that such incident soon turned violent and accused/ appellant inflicted several wounds on the body of the deceased with sharp weapon . 24. The accused also attacked the PW 3 with dagger like weapon and inflicted wounds on him. The statements, made in the FIR and the evidence rendered by the witnesses, more particularly P.W. 3 makes such position more than clear. The ev idence of PW 1 , PW5, PW6 and PW10 too lend necessary support to the claim, so made by the PW3. I have found no not to believe such claim made by the PWs, PW3 in particular. 25. Though it has been alleged that PW 3 has made drastic change in his vers ion during the course of trial, that some very witnesses, who were present at th e place of occurrence, were not examined by the prosecution, and that the case i n hand was maliciously initiated for some previous disputes between the parties thereto, I am not inclined to accept such claim since the materials on record di d not support such a contention. 26. On considering the matter in its entirety, I am of the opinion that the deceased died due to wounds inflicted by none else but by Sahab Uddin at the pla ce of occurrence on 14.05.1996. I have also found that on that the accused also attacked and injured the P.W.3 with a dagger like weapon on the same day. 27. In view of above, I find no reason to interfere with the conviction of t he accused person recorded under Section 304 Part-II/324 IPC. The learned Trail Court has inflicted adequate punishment on the accused appellant on each count. The judgment of the learned Trial Court is, therefore, upheld. 28. 29. diately. Consequently, the appeal is dismissed. Let a copy of this judgment be sent down to the learned Trial court imme