High Court · 2012

The prosecution’s case may, in brief, be described as under: That on the night of 28.12.1997, while Mofizul, son of Siraj Ali (since deceased), was enjoying ’Bhojbhat’ (some sort of picnic) with his friends at the backside of a tea-stall, Siraj Ali came their in angry mood, caught hold of Mof izul, and started assaulting him for having sold goat and, at that time, Siraj w as holding a dagger in his hand. Having been informed about what Siraj was doin g, accused Salim went running to the place of occurrence and, on arriving there, he, having found Siraj assaulting his son, Mofizul, and holding a dagger in his hand, tried to restrain Siraj, but Siraj asked him not to interfere. In the me anwhile, hearing the cries raised from the place of occurrence, accused Samsul ( since deceased) and accused Yar Ali, too, came running to the place of occurrenc e and, all of them, having failed to restrain Siraj Ali from assaulting his son, they picked up pieces of firewood, which were lying near the place of picnic, a nd assaulted Siraj with the pieces of firewood. As a result of the blows, given by the pieces of firewood, Siraj sustained injuries on his hand, feet and also on his head and fell down on the ground. Accused Samsul and others, then, made a rrangement for treatment of Siraj at Civil Hospital, Bongaigaon, and from there, he was referred to Civil Hospital, Dhubri; but, on the way to Civil Hospital, D hubri, he succumbed to his injuries. Thereafter, a First Information Report (in short, ’FIR’) was lodged by Marium Begum, widow of the said Siraj Ali, alleging assault on her husband by the said three accused persons. Based on this FIR, Bi jni Police Station Case No. 143/97, under Section 302/34 IPC, was registered aga inst accused Md. Samsul Sheikh (since deceased), Md. Yar Ali and Md. Sarifuddin Sheikh @ Md. Salimuddin Sheikh. During investigation, police held inquest over t he dead body of Siraj and post-mortem examination was also performed on the sai d dead body. On completion of investigation, police laid a charge-sheet against the said three accused persons under Section 302/34 IPC.

3. During trial, when a charge under Section 302 IPC read with Section 34 IPC was framed, the accused aforementioned pleaded not guilty thereto. In suppo rt of their case, prosecution examined as many as six witnesses. The accused pe rsons were, then, examined under Section 313 CrPC and, in their examination afor ementioned, they denied that they had committed the offence as alleged to have b een committed by them, their defence being that of total denial. No evidence wa s, however, adduced by the defence. 4. While holding the three accused persons aforementioned not guilty of the offence charged with, i.e., of the offence of murder under Section 302 IPC, the learned trial Court, having found that the accused were guilty of offence under Section 304 Part-II IPC, convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence, passed against them, the three accused persons preferred this appeal. However, during the pendencey of the appeal, accused-appellant No. 1, namely, Samsul Sheikh, has died and this appeal has abated as far as accused-appellant, Samsul Sheikh, was concerned. The appeal has, therefore, remained alive so far as accused Md. Yar Ali and Md. Sarifuddin Sheikh are concerned.

5. s, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. I have heard Md. M. U. Mahmud, learned counsel for the accused-appellant While considering the present appeal, it needs to be noted that there ar 6. e four eye-witnesses to the occurrence, namely, PW1, PW 3, PW 5 and PW 6, PW 6 b eing the son of deceased Siraj Ali. 7. Let me, first, come to the evidence of PW 1. According to his evidence, on the night of the occurrence, at about 9-00/9-30 p.m., when he was sitting in the tea stall of one Samsul, a boy informed him that Siraj Ali (sinc e deceased) was assaulting his son, Mofizul. On being so informed, he (PW1) rus hed to the backside of the tea stall and found Siraj Ali assaulting his son, Mof izul, and, at that time, Siraj was holding a dagger in his hand. It is also in t he evidence of PW1 that when he (PW1) tried to intervene, Siraj Ali restrained h im saying that he (PW1) should not interfere. PW 1 has also deposed that, in th e meanwhile, accused Samsul, Salim and Yar Ali also arrived there and they assau lted Siraj Ali with pieces of firewood in order to protect Siraj’s son and, as a result of the said assault, Siraj fell down on the ground, whereupon he (PW1) t ook Siraj to his house and asked accused Samsul to make arrangement for treatmen t of Siraj. PW 1 has further deposed that accused Samsul got Siraj hospitalized , at Bongaigaon, for his treatment and from there, while Siraj was being shifted to Civil Hospital, Dhubri, he died.

8. What transpires from the evidence of PW1 is that Siraj was assaulting hi s son, Mofizul, holding a dagger in his hand and that PW1 tried to interfere and save Mofizul, but Siraj restrained PW1 from interfering, whereupon the three ac cused aforementioned came there and they assaulted Siraj with pieces of firewood in order to protect Siraj’s son from the assault at the hands of his father, wh o was armed with a deadly weapon like dagger. 9. Lending support to the evidence of PW 1, PW 3 has deposed that, on the n ight of the occurrence, he, along with some boys of his village, had made arrang ements for a ’Bhojbhat’ (some sort of picnic) and they were cooking food at the back side of the tea stall of Samsul, where Siraj’s son, Mofizul, too, was prese nt. It is in the evidence of PW3 that while they were so cooking food, Siraj ca me there, caught hold of his son, Mofizul, and started assaulting him for sellin g goat and that, at that time, Siraj Ali was holding a dagger in his hand. It i s in the evidence of PW 3 that when Siraj was assaulting his son, the three accu sed persons came there and rescued Mofizul from the hands of the deceased by ass aulting Siraj. 10. In his cross-examination, PW 3 has clarified that Siraj Ali, while assau lting his son, was in drunken state and was shouting that he would kill his son. Broadly in tune with the evidence of PW 1 and PW 3, PW 5 has deposed tha 11. t, on the night of the occurrence, he, having heard hulla, rushed to the place o f occurrence and saw Siraj Ali assaulting his son, Mofizul, and though he (PW5) asked Siraj Ali not to assault his son, Siraj Ali did not listen to him and, in the meanwhile, accused Yar Ali, who was present at the place of occurrence, call ed his uncle, Samsul, whereupon accused Samsul and accused Salim came running to the place of occurrence and accused Salim assaulted Siraj with a piece of firew ood. In his cross-examination, PW 5 has stated that he saw Siraj Ali assaulting his son and that, at that time, Siraj was holding a dagger in his hand. 12. The evidence of PW 6, son of the deceased, is to the effect that, on the night of occurrence, he, along with some other boys of his village, arranged a picnic and, while they were cooking food at the back side of a tea stall, his fa ther, Siraj, came there and assaulted him and, at that time, his father, Siraj, was holding a dagger in his hand and that while he was so assaulted, his uncle, Samsul, asked Siraj Ali not to assault him (PW 6), but Siraj did not pay any hee d and accused Samsul, then, assaulted Siraj with a firewood and that accused Yar Ali also assaulted Siraj Ali with a piece of firewood and that he (PW6) fled aw ay from the place of occurrence out of fear. 13. It is also necessary to note, while considering the evidence of PW6, tha t PW 6 has deposed that accused had friendly relation with the deceased and that the accused persons had taken the deceased for treatment, when the deceased had sustained injuries. So far as the informant (PW 7) is concerned, she has, admittedly, not se 14. en the occurrence as she was not present at the place of occurrence. Her eviden ce is same as the evidence of PW 2 and, thus, her evidence as well as the eviden ce of PW2 are nothing, but hearsay. What is, however, important to note in the evidence of PW 7 is that, she, too, has deposed that her husband had good relati on with the accused persons. Thus, the accused persons not only had cordial rela tions with the deceased, but they even took the deceased to the hospital for tre atment. What surfaces from the above discussion of the evidence on record is tha 15. t a group of boys had arranged a picnic in the village and, at the place of the picnic, at about 9-00/9-30 p.m., while those boys were cooking food, Siraj Ali a rrived there in drunken state and started assaulting his son, Mofizul, on the gr ound that his son had sold his goat in the bazaar and that, while Siraj arrived at the place of occurrence and assaulted his son, he (Siraj Ali) was holding a d agger in his hand. Witnessing the dangerous scene, not only accused Yar Ali, wh o was present there, tried to restrain Siraj Ali from assaulting his son (PW6), but even PW 1 and others tried to restrain Siraj Ali. However, they all were as ked by Siraj Ali not to interfere and, on accused Yar Ali raising cries, accused Samsul and accused Salim came running and all three of them, then, assaulted Si raj Ali with pieces of firewood lying at the place of occurrence. It is also in the evidence on record that the accused persons had picked up the pieces of fir ewood lying at the place, where food was being cooked. This shows, as rightly po inted out by the learned trial Court, that the accused persons had assaulted Sir aj Ali in order to save his son from being injured or killed. The learned trial Court has further held that Siraj Ali had been assaulted by the three accused p ersons in furtherance of their common intention to assault Siraj. 16. What needs to be, now, noted is that the common intention, as the learne d trial Court has itself ascertained, was to assault Siraj Ali in order to save Siraj’s son from being harmed. Thus, the assault on Siraj Ali, at the hands of the accused persons, was aimed at saving the son of the deceased Siraj Ali. The learned trial Court has, however, found the accused-appellants guilty under Sec tion 304 (part-II) IPC. Can this conviction be sustained ? 17. While considering the conviction of the accused-appellants, under Sectio n 304 (part-II) IPC, it needs to be pointed out that Section 304 (part-II) IPC i s attracted, when a person commits culpable homicide not amounting to murder, if the act is done with the knowledge that it is likely to cause death, but withou t any intention to cause death, or to cause such bodily injury as is likely to c ause death. A person, in order to be held liable under Section 304(part-II) IPC, mu 18. st, therefore, be held to have assaulted another person with the knowledge that the assault was likely to cause death or the person assaulting must have had the knowledge that the injury was likely to cause death of the injured. In the pre sent case, the common intention, as ascertained by the learned trial Court, was to assault Siraj Ali in order to prevent him from causing any physical harm to h is son (PW 6). The post-mortem examination, conducted on Siraj’s deadbody, shows that Siraj had sustained an abrasion on his upper right arm and another abrasio n on his left leg. These two injuries were, admittedly, simple in nature. Howe ver, what proved to be fatal was the injury caused on the occipital region of hi s head, which was bone deep, and the shock and hemorrhage, resulting from the sa id injury on the head, caused the death of Siraj.

19. There is nothing in the evidence on record to show as to who had caused the injury on the occipital region of the said deceased. There is, admittedly, no evidence to indicate that any of the accused had intended to cause death of the said deceased. In the absence of any evidence, showing as to who had given the blow on the head of the deceased, which proved to be fatal, none of the thre e accused could have been legally held to have had assaulted Siraj Ali with the knowledge that the assault was likely to cause his death. It may be reiterated that, in order to sustain a conviction under Section 304 (II), a person must be held to have, at least, the knowledge that the injury was likely to cause death. In the present case, there is no evidence, as already indicated above, a 20. s to who had given the fatal blow. The fatal blow could not have, therefore, be en attributed to any of the three accused-appellants, particularly, when, accord ing to the learned trial Court itself, the accused merely intended to assault Si raj Ali in order to save his son. The learned trial Court could not have, there fore, held that the accused had the knowledge that the injury was likely to caus e death, when it is not known as to who had given the fatal blow and when there is no indication from the evidence on record that the three accused had shared a common intention to assault the deceased on his head; more so, when, even the l earned trial Court has not come to the conclusion that any of the accused intend ed to cause Siraj’s death.

21. Situated thus, it becomes clear that, in the absence of any evidence att ributing the fatal blow to any of the three accused persons, none of the three a ccused could have been held liable for commission of offence under Section 304(p art-II) IPC or Section 324 IPC. The three accused persons could not have been h eld to be guilty of offence even under Section 323 IPC inasmuch as the assault b y the three accused persons on Siraj was to save Siraj’s son from being seriousl y hurt or even killed. In the circumstances as discussed hereinbefore, no case o f conviction under Section 304(part-II) IPC or under any other penal provisions can be said to have been made out against the accused-appellants.

22. In the result and for the reasons discussed above, this appeal succeeds. The accused-appellants are held not guilty of the offence under Section 304(par t-II) IPC and/or of any other penal provisions and they are acquitted of the off ence under Section 304(part-II) IPC. The sentence, passed against them, is also hereby set aside.

23. disposed of. With the above observations and directions, this Criminal appeal stands

24. Send back the LCR. JUDGE