High Court
Case Details
Crl.A. 200/2009 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL THE HON’BLE DR. (MRS) JUSTICE I SHAH JUDGMENT AND ORDER (CAV) [Dr. (Mrs. I.Shah, J] The judgment and order dated 23.09.2009 passed by Learned Sessions and D istrict Judge, Barpeta in Sessions case No. 76/2004, convicting the appellants u nder section 148/149/341/302/323 IPC and sentencing them thereby to under go imp risonment for life with fine of Rs. 2,000/-, in default, simple imprisonment for 60 (sixty) days for their conviction under section 302 read with section 149 IP C, further imprisonment for 1 (one) year with fine of Rs. 500/-, in default, sim ple imprisonment for 1 (one) month for conviction under section 148 IPC, furthe r imprisonment for 6 (six) months with fine of Rs. 200/-, in default, simple imp risonment for 10 (ten) days with fine of Rs. 100/-, in default, simple imprisonm ent for 5 (five) days for their conviction under section 341 IPC have been chall enged.
Legal Reasoning
2]. The prosecution, story in brief, is that on 24.09.2003, at about 06.30 A .M. Nuruddin (deceased) along with his cows was proceeding towards the embankmen t and when he reach in front of house of Aynal Haque the accuse-persons with dao , axe, dagger etc. attacked him. When his brothers Jahur Uddin (PW.3), Sourabudd in (PW.4), Rejia Khatton (PW 8), wife of his brother and his father Aijuddin (PW .2) went there in his rescue, they were also assaulted. Nuruddin succumbed to th e injury on the spot. FIR, being lodged by PW.2 i.e. (the father of the deceased ), Patacharkuchi Police Station Case No. 173/2003 under section 147/148/149/341/ 326/325/323/302 IPC was registered. On completion of the investigation, charge s heet against the accused Rahemat Ali, Noor Jamal, Ajgar Ali, Nuruddin, Mustt. Fa ijan Bewa, Md. Neser Ali was submitted under the aforesaid sections of law. 3]. Charges under section 148/340/326/324/302 read with section 149 IPC were framed against the accused-persons, to which they pleaded not guilty and claime d to be tried. The prosecution examined as many as 12 witnesses in order to esta blish the charges brought against the accused-persons. Thereafter, statements of the accused-persons under section 313 Cr.P.C were recorded. The defence plea wa s that the deceased along with Jaharuddin (PW.3), Sourabuddin (PW.4), Raijuddin (PW.6) and Saharuddin (PW.5) and Nuruddin in a group entered to the house of the accused Faijan, they dragged her daughter out of the house in a naked condition . While they were taking her towards their house, the people proceeding to mark et saw it and forbid them from doing so. They were assaulted by the public. Faij an Nisha (accused) lodged an FIR in connection with the occurrence and the afore said prosecution witnesses were convicted by the Court. It is also the case of t he defence that 2 ‰ years prior to the occurrence, the deceased and the aforesai d witnesses assaulted the husband of Faijan Nisha causing his death. Therefore, there was a murder case pending against the deceased and the witnesses.
Legal Reasoning
I have heard Mr.H.R.A.Choudhury, learned counsel for the appellant as we 4]. ll as Mr. B J Dutta, learned PP, appearing on behalf of the State of Assam. 5]. PW.1 Dr. Tarun Ch. Talukdar performed the post mortem examination on the dead body of Nuruddin on 24.09.2003 and his findings are as follows:- External Appearance An average built male body, pale, rigormortis present, not decomposed and found the following injuries- One incised wound just above the left upper eye-lid 1 (cid:28) inch x 1 (cid:29) inch. (i) (ii) One incised wound on left parietal region 3 (cid:28) inch x 3 (cid:28) x 2 (cid:28) inches. F racture of left parietal wound tearing of malings and injury to the left parieta l lobe of brain. (iii) One incised wound over the back of left shoulder 7 (cid:29)inches x1 (cid:28)inch x ‰ (cid:28) inch. One incised wound over the extensor surface left elbow joint 2 (cid:28) inches (iv) x ‰ (cid:28) inch. Fracture of left ulna upper end. (v) One incised stab wound right hypochordium 1 (cid:28) inch x 1 (cid:28) inch x 4 (cid:28) inch es injurying peretonium and right lobe of liver. Bllod clot in the peretonial sp ace. (vi) 1 (cid:28) inch. (vii) ood clot seen over all the injured tissues. One incised wound over the back of middle of lumber region 2 (cid:28) inches x Right great toe amputated at the level of distal phalanx. Ante-mortem bl Stomach Healthy and filled with partially digested food with gas and faecal matter. All the injuries sustained on his person are ante-mortem in nature. 6]. In the opinion of the doctor, the cause of death is due to shock and hemorrhage resulting from the injuries sustained. 7]. PW.2 father of the deceased deposed that on 24.09.2003, his son Nuruddin went out with his cows at around 06.30 A.M and when he reached near the house of Faijan Ali, PW.2 heard the alarm raised by him and he immediately rus hed to the place of occurrence where he saw the accused-persons assaulting Nurud din with dao, Ballam and axe. Rahmat Ali, Nur Uddin, Ajgar Ali, each of them wer e holding dao. Nesar Ali and Mukuruddin were holding lathis. When he reached the re, he was also assaulted by the accused-persons. According to him, his sons Jah aruddin, Shorabuddin and Daughter-in-law Rejia Khatun were also assaulted by the accused. He further deposed that accused Rahamat Ali dragged Nuruddin to the co urtyard of Faijan in injured condition and again he was assaulted. PW.2 leaving his son in a serious condition rushed to the Police Station and informed the Pol ice. Thereafter, the injured except Nuruddin were removed to Sarupeta P.H.C for treatment. Nuruddin could not be taken away as he was gheraoed by the accused-pe rsons, subsequently he died. Police came and held inquest on the dead body of th e deceased. He lodged the formal FIR. 8]. PW.3 Jahur Uddin, PW. 4 Sourabuddin, PW.5 Saharuddin, P W.8 and Rejia Khatun and Moijuddin are the brothers and mother of the deceased. Corroborating, the evidence of PW. 2, they stated that the accused-persons assa ulted Nuruddin on the embankment while Nuruddin was proceeding along with his co ws. These witnesses went in his rescue but they were also assaulted by the accus ed-persons. The accused-persons were armed with dao, Ballam, lathis, spade etc. 9]. PW.3 stated that he was assaulted by the accused Nur Jamal by means of a lathi, causing fracture in his leg and two fingures of his right hand. He also stated that Nur Uddin assaulted him with dao on back of his neck whereas Rahamat Ali assaulted him by means of a lathi. According to him, PW.4 Rahamat Ali cause d injury to him on his head by means of a ballam. PW. 5 stated that he sustained injury on being assaulted by Rahamat Ali by means of a ballam. Nur Uddin and Aj gar Ali caused the injury by means of dao and dagger. PW. 6 stated that Rejia Kh atun, Sahar Uddin, Aijuddin, Jahuruddin and Sohrabuddin, were assaulted by the a ccused-persons. PW.8 stated that she was assaulted by Nuruddin by means of a lat hi. PW.6, Raijuddin, was ploughing his field in the western side of his house. Hearing the alarm, he proceeded towards the place of occurrence and saw the accu sed-persons assaulting Nuruddin. He stated that as he was threatened by the accu sed Rahamat Ali, he returned back. According to him, Rejia Khatun, Sahar Uddin, Aijuddin, Jahuruddin and Sohrabuddin were also assaulted by the accused-person s. He accompanied the injured persons to the Police Station and the information report was lodged to the Police Station. PW.7, Hatem Ali witnessed the inquest o n the dead body. 10]. PW.9 Must. Elija Begum stated that she witnessed the occurrence from her house. While Nurudddin was going through the road, the accused Rahamat Ali, Nu ruddin, Nur Jamal, Ajgar Ali, Nesar Ali, Musst. Faijan restrained him and assau lted him. When his brothers went in his rescue they were also assaulted. Her Mot her-in-law Rejia went there but she was also assaulted. 11]. PW.10 Mohbot Ali saw the deceased Nuruddin lying with injuries near to t he shop of Ainal Haque. He was lying near shop, downward of embankment. He also saw the accused-persons near the deceased. He stated that Faijan came out from house and told that they brought Nuruddin from home. It is in his evidence that Rahamat Ali was armed with ballam, and Nuruddin was also holding a dao, Nur Jama l had lathi in his hand. PW.10 left the place and later he heard that Nuruddin had died. 12]. PW. 11 & 12 are the investigating officers. 13]. The fact that the deceased Nuruddin died due to ante-mortem injuries sustained by him is not in dispute. It is also not disputed that PW. 2,3,4,5 and 8 had also sustained injuries during the inci dent. The accused Rahamat Ali and Faijal Nisha as well as DW-1 & 2 have stated that on the date and time of occurrence, the deceased Nuruddin along with PW.3 J aharuddin, PW.4, Sourabuddin went to the house of Faizan Nessa and forcibly drag ged her daughter Amirjan in a naked condition. On that day there was weekly mark et and many people were proceeding towards market. On seeing the activities of t he deceased and witnesses, the people who were proceeding towards market assault ed them and in the result Nuruddin died on the spot. They also stated that 2 ‰ y ears before the occurrence, the witnesses along with others committed murder of the husband of DW 2, Faizan Neesa. There was a case against them. Faizan Nessa a lso lodged the FIR against the witnesses for outranging modesty of her daughter. In the case, lodged by Faizan Neesa, the witnesses were convicted. Therefore, a ccording to the accused-persons they were implicated because of previous grudge. 14]. PW 3 Jahuruddin, in cross-examination, admitted that he is one o f the accused in the trial for murder of husband of the accused Faizan Nessa. Mr . Choudhury, learned senior counsel has submitted that the witnesses have given different version with regard to their arrival at the place of occurrence and w ith regard to weapon used and blows dealt by each of the accused persons. 15]. From the conjoint reading of the evidence of witnesses, it trans pires that the witnesses arrived at the place of occurrence hearing commotion. W ho came first, it is not material when it is not in dispute that the victims wer e assaulted. Graphic details are not humanly possible when there were numbers of people involved. 16]. It is further submitted by the learned counsel that all the wit nesses except PW 10 were related to the deceased. Not only they are partisan wit nesses they were inimical to accused persons. There was a cross case against PW 3 and PW 4. PW3 and PW5 were convicted in the cross case lodged by the accused F aizan Nessa following molestation of her daughter. Therefore, the related and in imical witnesses will be interested witnesses who will naturally have strong mot ive to implicate the accused persons. 17]. The witnesses examined by the prosecution were cross-examined at length but nothing could be elicited to discredit them. It is trite that enemit y is a double edged weapon as it may provide a motive for the crime as also for false implication. However, in view of the admitted enemity between the parties, we have carefully scrutinized the evidence on record. If the defence version is believed then admittedly the deceased and PWs 2,3,4,5 and 8 also sustained inju ries caused to them near the house of Faizan Nessa. According to accused the dec eased and aforesaid witnesses dragged the daughter of accused Faizan Nessa from her house in naked condition and they were assaulted by on goers to market. 18]. It is in the evidence of DW 1 Rehmat Ali who is an accused in this case that hearing hue and cry he went to the place of occurrence. Remaining accused a lso followed him. He admitted that his house is at a distance of ‰ furlongs fro m the place of occurrence. DW 1 and DW 2 could not say who assaulted the decease d. DW 3 only saw the dead body of the deceased lying at the place of occurrence. He stated that he cannot say how the occurrence took place. None of the villagers or neighbours were examined by the defence to corr 19]. oborate the defence case that the deceased and witnesses were assaulted by some other persons or by unknown/unidentified market goers. The defence version that the deceased and witnesses entered into the house of the accused Faizan and drag ged out her daughter if believed, it leads to conclusion that there was motive f or the accused persons to assault the deceased and witnesses. The consistent evi dence of 5 eye witnesses coupled with the uncontroverted fact that the deceased met with his death there with a number of injuries unmistakably proves, indepen dent of the actual role of the six appellants in the assault itself, that all of them shared the common intention to commit the murder. To put it differently, e ven it is assumed that the prosecution has failed to conclusively prove as to th e actual manner in which the appellants brought about the death of deceased and injuries to witnesses, still the circumstances as appearing in the evidence of 5 eye witnesses establishes that all of them shared the common object. It is al so an admitted fact that PWs 3,4, 5 & 6 and other were convicted for their alleg ed offence of outraging the modesty of the daughter of the accused Faizan.
Decision
In view of the circumstances and considering the multiple injuries susta 20]. ined by the deceased and also taking into consideration that the witnesses/victi m were convicted in the case of alleged offence of outraging the modesty of the daughter of one of the accused, we hold that the accused persons in furtherance of their common object with intention to cause such bodily injures to deceased w hich was likely to cause his death, caused the injuries and therefore, they are liable to be convicted under Section 304 Part-I IPC read with Section 149 I. P.C . 21]. ot be established by the prosecution. Since the nature of injuries sustained by the witnesses, victims could n We hold that the trial court rightly held them guilty under Section 323 22]. and 148 read with Section 149 IPC. However, the prosecution could not establish the case under Section 341 IPC. Therefore, the conviction and sentence awarded a gainst the accused under Section 341 IPC is set aside. The conviction and sente nce under Section 302/149 IPC is modified under Section 304 Part-I IPC. The accu sed appellants are convicted under Section 304 Part-I/148/323 IPC read with Sect ion 149 IPC. They are sentenced to undergo imprisonment for 10 years with fine o f Rs. 2000/-, in default, further R.I. for 2 months for their conviction under S ection 304 Part-I read with Section 149 IPC. The sentence under Section 148/323 IPC awarded by the trial Court is affirmed. All the sentences shall run concurre ntly and with the aforesaid modification, the appeal stands disposed of. 23]. While disposing the appeal, we direct the State Government to pay compen sation of Rs.50,000/- to the family members of the deceased in terms of Section 357 A Cr. P.C. JUDGE JUDGE