High Court · 2012

The investigation in the case got initiated by the FIR dated 24 03. .03.2002 lodged by one Md. Soleman Ali with the In-Charge, College Road Out Post , Dhubri alleging that in the evening at about 7 P.M. on that date there was a d omestic quarrel between a group of persons (termed as accused persons) and Hussa in Ali in connection with the marriage of his daughter. The FIR further disclos ed that in course of the heated exchanges, these persons in an agitated mood a nd armed with lathi and other sharp cutting weapons barged into the house of Hus sain Ali and unleashed abuses, as a result whereof, he (Hussain Ali), his nephew , Sariatullah Sk. and son Faizal Haque came out of their house, whereupon all of them were assaulted severely by the assailants on their head, shoulder and othe r parts of the body, thus seriously injuring them. It was stated in the FIR as well that on hearing the commotion, one Saidur, S/o. Gulzar Munsi reached the sp ot to offer resistance, for which named the miscreants also assaulted him with l athies. At that stage on the intervention of the neighbouring people, the assai lants fled the scene, whereafter, the injured were taken to the Dhubri Civil Hos pital for treatment. However Sariatullah Sheikh was declared to have been brough t dead. In the FIR, the appellant along with 8 other persons (five of whom stoo d trial with him) were named. On the FIR, eventually, Dhubri P.S. Case No.56/20 02 was registered U/s.147/148/149/447/294/326/302 IPC and charge sheet was submi tted against the appellant and others. The learned jurisdictional Sessions Cour t framed charge against him as well as Md. Apizur Rahman, Md. Riazul Haque, Md. Maniruzzaman @ Dish, Md. Badial Sheikh., Md. Jahirul Islam and Md. Jaharuddin Sh eikh U/s.323/302/34 IPC. They having pleaded (cid:28)not guilty (cid:29), the trial followed, in course whereof, the prosecution examined 17(seventeen) witnesses including th e Investigating Officer as well as the doctors who had performed the post mortem examination on the dead body and had attended the injured. In course of their e xamination U/s.313 Cr.P.C., all the accused persons stood by their plea of absol ute denial of the charges. They however did not adduce any evidence. By the im pugned judgment and order they were convicted and sentenced, as above.

04. It would be expedient at this stage before adverting to the riva l submissions to briefly sketch the relevant evidence on record. PW-1 Soleman Al i, informant stated on oath that the deceased Sariatullah Sheikh was his cousin. He deposed that on the date of occurrence in the evening he having heard shout s from the house of Hussain Ali, his younger brother, he reached there and found him lying on the ground. He stated that at that point of time, the son of the injured Faizal had also been assaulted. He deposed that then Sariatullah Sheikh reached the place of occurrence, whereupon the appellant assaulted him with an iron pipe, for which Sariatullah Sheikh fell down. According to the witness, th e other accused persons then assaulted Sariatullah Sheikh. When Sonu Sheikh cam e to intervene, he was assaulted as well. He proved the FIR, Ext-1. In cross-e xlamination he stated that his house as well as t hat of the deceased and Hussai n Ali were all situated within the same compound. He disclosed that Hussain’s d aughter Hasina had been given in marriage to the accused Jahirul who hailed from Bilashipara. He denied to have stated before the police in course of the inves tigation that after nine months of conjugal life, a dispute surfaced between Jah irul and Hasina, the daughter of Hussain Ali, for which the latter came back to her father’s house and that on the date of the occurrence, Jahirul came to his father-in-law’s house along with deceased Sariatullah Sheikh to facilitate her ( Hasina) return to the matrimonial home. This witness also denied to have stated before t he police that at this, the wife of Hussain Ali resisted all endeavour s as a result whereof, there was a quarrel, in course of which Sariatullah Sheik h assaulted Hussain Ali and in retaliation the latter struck Sariatullah Sheikh by a piece of wood.

05. PW-2 Hussain Ali, the brother of PW-1 admitted that his daughter Hasina had been married to accused Jahirul and that on the date of occurrence t he couple had gone to his place. He alleged that he accused Riajul did assault him with an iron pipe on the head, for which he raised alarm and as his son Faiz al came to intervene he was also beaten. The witness stated further that Sariat ullah Sheikh who arrived at the place of occurrence was assaulted by the appella nt with an iron pipe. He denied the suggestion that he, Faizal and Soleman had picked up a quarrel just before the incident with Jahirul and Sariatullah Sheikh , who visited his house to settle the marriage dispute between Jahirul and Hasee na.

06. PW-3 Babur Ali stated on oath that at the time of the occurrence on coming out of his house he saw Hussain Ali and his men and Monbhola @ Hafizu r Rahman engaged in a fight. He however stated that the appellant did assault S ariatullah Sheikh, whereafter, all person engaged themselves in a free fight. I n cross-examination this witness clarified that the quarrel originated from the incident in which Jahirul and his wife, the daughter of Hussain Ali were involve d.

07. PW-4 Sahidul Rahman deposed on oath also about having seen the f ight between Monbhola and Hussain Ali. He however mentioned about Sariatullah S heikh lying on the border separating the land of these two persons with blood oo zing out from his ears. This witness stated that at that point of time Sariatul lah Sheikh was alive. He in his cross-examination as well stated about an alterc ation between Sariatullah Sheikh and Hussain Ali involving the daughter of the l atter. He mentioned as well of the fact that the daughter of Hussain Ali had gon e to the house of her father from his husband’s house and that Hussain Ali had r estrained her from returning to her matrimonial home. He stated as well that th e accused Jahirul Islam had brought Sariatullah Sheikh to the house of Hussain A li for settlement in this regard and that the confrontation constituting the inc ident occurred over this matter.

08. PW-6 Md. Moinul Haque also referred to this occurrence as one be tween Hussain Ali and accused Jahirul. He stated that Jahirul had confided him that he wanted his wife Hasina to return with him but Hussain Ali was opposed to that.

09. PW-7 Md. Majibor Rahman also referred to this stand of Hussain A li in not allowing his daughter to return to Jahirul as the cause of the inciden t resulting in a free fight/assaults and the injuries to Sariatullah Sheikh, Hus sain Ali and Sonu Sheikh.

10. PW-9 Md. Faizal Haque is the brother of the deceased. He stated that his sister had been given in marriage to Jahirul and after about a year th ereafter she was allowed to go to her parents’ house. He stated that on the dat e of the occurrence, altercations took place amongst the women folk of the two f amilies, in course of which abusive exchanges were made. He stated to have seen his father lying on the ground with head injury when had returned home in the e vening. He however referred to the act of the appellant striking the deceased on the head with an iron pipe, for which , he (deceased) fell down following whic h, Monbhola @ Hafizur Rahman also assaulted him with bamboo sticks. PW-10 Musstt. Fatima Bibi, the mother of PW-9 reiterated the fac 11. ts relating to Jahirul and Hussain as well as the altercations that preceded the incident. She of course mentioned about the assault on the head of the decease d by the appellant by means of an iron pipe. PW-12 Saidur Rahman, brother-in-law of the deceased stated to ha 12. ve reached the place of occurrence on hearing shouts from the house of Sariatull ah Sheikh. He stated that on reaching the place of occurrence, he found Sariatu llah Sheikh lying on the ground being assaulted by four persons namely- Riazul ( appellant), Dish Man Bhola @ Afizur Rahman and Zahiruddin Sk. He stated that as he tried to intervene he was also assaulted.

13. PW-13 Musstt. Monowara Bewa , wife of the deceased stated that j ust before the incident accused Jahirul had gone to the house of his father-in-l aw to bring back his wife Hasina upon which his in-laws picked up a quarrel. A meeting was thereafter arranged in the house of Hussain Ali, in course of which the brother of the deceased wanted to assault Jahirul by means of a stick. He s tated that thereafter Hussain Ali assaulted her husband on the head.

14. PW-14 Md. Majibar Hoque stated on oath that on hearing the commo tion from the place of occurrence, he reached there and found Jahirul and Sariat ullah Sheikh standing face-to-face whereafter, Faizal came and attempted to assa ult Jahirul but missed. According to this witness, thereafter Hussain Ali came out of his house and assaulted Sariatullah Sheikh whereupon, Sariatullah Sheik h was taken to the hospital where he died.

15. PW-5 Rabindra Sarma who at the relevant point of time was the Sr . Medical & health Officer in the Dhubri Civil Hospital stated to have examined Hussain Ali and Saidur Rahman for the injuries sustained by them. Referring to the injury report, Ext-4, he told that he found lacerated injuries on the head a nd the fingers of these two persons which according to him have occurred due to scuffle or collision against hard substance.

16. ion on the dead body of Sariatullah Sheikh found the following injuries: PW-8 Dr. Raj Kumar Mahato, in course of the post mortem examinat (cid:28)(i) Wound- Lacerated wound of Rt. Parietal area of the scalp . Placed from above downward direction. Size - 5 cm x 2 cm. Skull bone exposed . Fracture of the right parietal bone seen in the gap of the wound. A male dead body of average built, dark brown complexion. Rigor mortis developed all over the body. (ii) (iii) (iv) Abrassion:- Left leg medical side 1 cm x 2 cm. Skull, Cranium- Ruptured at the parietal area. Brain- Laceration of the right lobe of the cerebrium (parietal area). (cid:29) the deceased. He proved the post mortem report Ext-6. According to him, death occurred due to head injury sustained by

17. PW-15 Ganesh Ch. Das is the Investigating Officer who detailed t he steps taken by him in course of the investigation stated amongst others abou t the seizure of one batten, of sal wood, bamboo sticks and a piece of old hawai chappal and leather chappal from the place of occurrence. With reference to th e case diary in his cross-examination, the witness further stated that PW-1 Sole man Ali had not disclosed to him that accused Reazul Haque struck Saritullah by an iron pipe.

18. PW-16 Rokendra Nath Brahma who at the relevant point of time was the Judicial Magistrate at Dhubri testified to have recorded the statements of Monowara Begum (PW-13) and Saidur Rahman (PW-12) U/s.164 Cr.P.C., which he prove d as Ext-11 and Ext-9 respectively. The evidence of PW-17 Maniruddin Sk, who at the relevant point o 19. f time was the Bench Assistant in the court of the Sub-Divisional Magistrate, Dh ubri is not any significance.

20. Mr. Karmakar has urged that as the prosecution version at the tr ial is contrary in material particulars to the narration in the FIR, its (prosec ution) case is wholly unworthy of any credit and therefore the learned trial cou rt was grossly wrong in convicting the accused-appellant U/s.302/34 IPC. Accord ing to him, it being evident from the evidence of the prosecution witnesses that the appellant was not the aggressor and that the injuries to the deceased and o thers had resulted from a free fight between two groups, the charge of murder le veled against him, in the facts and circumstances of the case does not lie in an y view of the matter and thus the impugned judgment and order is liable to be in terfered with. Contending that, in fact it was Hussain Ali who had struck the f atal blow on Sariatullah resulting his death and not the appellant, the learned counsel has urged that it being even otherwise impertible to demonstrate that t he appellant was responsible for the death of Sariatullah, he could not have bee n convicted U/s.302/34 IPC, there being no preconcert between him and the other members of the fighting group. Mr. Karmakar in order to reinforce his submissi ons also did draw the attention of this Court to the failure of the investigatin g agency to seize any iron pipe allegedly used by the appellant in making the as saults on the deceased.

21. Mr. Mazumdar, in reply has argued that a conjoint reading of the evidence of the prosecution witnesses would prove without all reasonable doubt that the charge of murder leveled against the accused-appellant has been amply p roved and thus the impugned judgment and order being valid in law does not call for any interference of this Court. According to him, it being evident on the fa ce of the record that the fatal blow on Sariatullah leading to his death was dea lt with by the appellant with an iron pipe, his conviction U/s.302/34 was justif ied and all pleas to the contrary are liable to be rejected in limine.

22. We have cautiously examined the evidence on record and have duly analysed the arguments on the basis thereof. The evidence of PW-1,2,3,4; PW-6, 7; PW-9,10, PW-14 taken as a whole in our view bears out the stand taken on beha lf of the accused-appellant. The prosecution witnesses more particularly PW-6,7 ,9,10,12 & 13 have consistently deposed that before the incident of assaults th ere was an animated confrontation between Hussain Ali and Faizal on one side and Sariatullah, Jahirul Islam and Reazul Haque on the other. That the women folk of the two families were involved in the quarrel pertaining to the issue of retu rn of Hasina, wife of Jahirul Islam to her matrimonial home and that it was the root cause of the hostilities resulting in free fight between two groups leavin g one dead and two injured is apparent on the face of the records.. An analysis on the evidence adduced makes it difficult to identify the appellant as the aut hor of the lethal blow on the head of the Sariatullah with an iron pipe leading to his death. He suffered the injury in a mob, in which persons agitated had be en engaged in assaulting each other. However that the appellant was one of the persons in the group and had assaulted Sariatullah is also patent from the evid ence of some of the prosecution witnesses. It thus, cannot be concluded that he is totally innocent of any offence whatsoever. That the appellant had dealt wi th blows on the head of Sariatullah has been stated amongst others by PW-1,2 & 3 . The above, notwithstanding having regard to the circumstances immediately pre ceding the incident and the agitated mood of the persons involved therein, we ar e unable to attribute the required criminal intention to the accused-appellant, to hold him guilty of the offence of murder U/s.302 IPC, read with Section 34 of the Code. At the best, having regard to the evidence on record as a whole, in our opinion his offence can be said to be one of culpable homicide not amounting to murder within the Section 304 Part-II IPC. It is submitted at the Bar that the appellant is in custody sinc e his detention pursuant to the judgment and order impugned herein. He is thus is in detention for over five years as on date. In the singular facts and circu mstances of the case while scaling down his offence to one U/s.304 Part-II, we a re of the view that the interest of justice would be met if the period of impris onment is limited to 5(five) years and he is also awarded fine of Rs.500/-, in d efault to suffer imprisonment for another one month. It is made clear that if t he period of imprisonment suffered by the appellant as on date is beyond five ye ars one month, the amount of fine would not be insisted upon and he would be set at liberty forthwith, if not wanted in any other case. The appeal is allowed in the above terms. No costs.