High Court · 2012

In support of their case, prosecution examined as many as 12 witnesses. 4. The accused were, then, examined under Section 313 Cr.PC and in their examinatio n aforementioned, the accused persons took the plea that they were attacked by I nnus Ali and his associates and that as far as the accused were concerned, they were completely innocent. In support of their case, the defence also examined tw o witnesses, namely, Mainuddin, who is one of the accused, and one Kamaluddin. T he learned trial Court held all the accused not guilty of the offence under Sect ion 302 IPC, but took the view that the present appellants were guilty of offenc es under Sections 325 and 323 IPC read with Section 149 IPC and convicted them a ccordingly and pass sentences against them as mentioned above. Aggrieved by thei r conviction and the sentences passed against them, the accused have preferred t his appeal. There is no appeal by the State or by the informant or the victim as against the acquittal of the remaining accused and/or against the acquittal of the accused under Section 302 IPC. .

5. the appellants, and Mr. D. Das, learned Additional Public Prosecutor, Assam. I have heard Mr. I.A. Hazarika, learned counsel, appearing on behalf of

6. While considering the present appeal, it needs to be noted that PW1 (Inn us Ali) is the one, who, admittedly, sustained injuries, and whose wife, Phulban u Bibi, died in the occurrence. His evidence being material, is, first, taken up for discussion. According to his evidence, on the day of the occurrence, at abo ut 3 pm, he, along with Hazarat Ali (PW5), Nakbor Ali (PW4), Ahmed Ali (PW6), Jo ynal Abedin (PW23), Kamal (who has not been examined) and Osman (who has also no t been examined), were returning home from a place called ’eleven mile’ and they were at a distance of 100/120 cubits from the house of PW1, accused Sirajuddin, Joinaluddin (appellant No.3), Saiful (appellant No.2), Moram Ali (appellant No. 1), Koram Ali (since acquitted) and others, who were armed with lathi, dao, etc, encircled them and assaulted them and as a result of the assaults, he sustained fracture of both his hands. It is in the evidence of PW1 that on hearing his cr ies, his wife, Phulbanu Bibi, reached the place of occurrence, but she too was a ssaulted by accused Moram Ali, Sahajuddin, Joinaluddin, Osman and Sirajuddin and as a result of the assault, Phulbanu Bibi too sustained injuries. It is also in the evidence of PW1 that Hazarat Ali, Nokbar Ali, Ahmed Ali and Joinaluddin als o sustained injuries. This witness has further deposed that they were all taken to Katholia Hospital and from there, they were shifted to Civil Hospital, Nagaon , but on the following day, Phulbanu Bibi died at the hospital. Broadly in tune with the evidence of PW1, the remaining four witnesses, 7. namely, PW3, PW4, PW5 and PW6, have deposed that when they were returning home, they were assaulted by the accused-appellants and their associates aforementione d and, as a result of the assault, they sustained injuries and they were hospita lized and that Phulbanu Bibi, wife of PW1, died at the hospital. As far as the informant, Kasem Ali (PW2), is concerned, his evidence is 8. that on the day of the occurrence, at about 8.30 pm, when he was at his house, P hulbanu Bibi, whose house was situated on the southern side of his house, PW1 ca me to his house and reported that an altercation was taking place. It is in the evidence of PW2 that he, along with Phulbanu Bibi, came to the place of occurren ce and, on reaching there, he found altercation among Hazarat Ali, Ahmed Ali, In nus Ali, Nokbar Ali, Joynal Abedin, Sahabuddin, Joinaluddin, Moram Ali, Koram Al i, Saiful, Usman and Sirajuddin. It is in the evidence of PW2 that when he reach ed near the place of occurrence, Joinal and Usman asked him to leave, whereupon he left the place. It is also in the evidence of PW2 that Hazarat Ali, Ahmed Ali , Innus Ali, Nokbar, Joynal Abedin and Phulbanu Bibi sustained injuries. The inj ured were brought to the courtyard of Nokbar Ali and, then, taken to Katholia Ho spital and Phulbanu died at the hospital on the following day. PW2 has proved th e FIR as Ext.1. The evidence of PW2 shows that it was a moonlit night. Though th e defence has cross-examined, at length, the prosecution witnesses aforementione d, nothing, in particular, could be elicited from the cross-examination of the w itnesses aforementioned to show that what these witnesses had deposed were untru e or false. The evidence of the witnesses aforementioned has, therefore, remaine d unshaken. One can also not ignore the fact that though PW2, who is the informant, 9. had not seen occurrence of assault on the said injured including Phulbanu Bibi ( who died subsequently), the fact of the matter remains that this witness (PW2) h ad seen an altercation between the injured persons and the accused-appellants an d, soon thereafter, Innus Ali and his companions as well as his wife, Phulbanu B ibi, sustained serious injuries. In the absence of any such evidence showing tha t PW2’s evidence is false, there can be no escape from the conclusion that the s aid injured, including Phulbanu Bibi, sustained injuries on their persons at the hands of the accused-appellants.

10. Before proceeding further, it may, however, be noted that PW7, Sahar Ali , in his evidence, has deposed that on the night of the occurrence, he was going to his house from market and, on the way, he met Hazarat, Ahmed, Innus, Nekbor and Kamal and before he (PW7) entered into the house of Hazarat, he was restrain ed by some person and, on query, made by him, they told him (PW7) that they woul d cause marpit and, out of fear, he left the place. It is in the evidence of PW 7 that he saw some weapons in the hands of those persons. Later on, when he went to the house of Hazarat Ali, he saw Hazarat, Nekbor, Innus, Ahmed and one woman in injured condition. This witness has identified accused Moram Ali, Saiful Isl am, Sahajuddin and Joinaluddin as persons, who had encircled Hazarat Ali and oth ers. PW7 has also deposed that the woman died on the following day. The evidence of PW7 too, has remained unshaken in cross-examination and there is no reason f or the Court not to believe him and, if his evidence is believed, which this Cou rt sees no reason to disbelieve, one has no option, but to conclude that the app ellants were the ones, who had assaulted Innus Ali and his associates as well as his wife Phulbanu Bibi, who died on the following day.

11. d to hospital and, later on, Innus’s wife died in the hospital. So far as PW8 is concerned, his evidence is that he had taken the injure Turning to the evidence of the doctor (PW9), who conducted post-mortem e 12. xamination on the dead body of Phulbanu Bibi, it transpires that according to hi m, he found the following injuries on the person of Phulbanu: (cid:28)One stitch wound 5 (cid:29) in length on the scalp extending from forehead to vertex re gion. On exposure of the wound, there was fracture of the right parietal bone. Cranium and spinal canal - there was collection of subdural hemorrhage on both t he hemisphere. Thorax - left chamber empty and right chamber contains fluid and clotted blood. There was fracture on right parietal bone. (cid:29)

13. In the opinion of the doctor, the injury was ante mortem in nature. The death was caused due to shock as a result of the head injury sustained by the sa id deceased. In his cross-examination, PW9 has clarified that the deceased died, because of head injury and not for hemorrhage.

14. From the evidence of PW9, it becomes clear that there was a fracture of the right parietal bone of Phulbanu Bibi and, as a result of this injury, she d ied.

15. Close on the heels of the evidence of PW9, PW10, who too is a doctor, ha s deposed that he, on 24.01.97, examined one Ahmed Ali at Nagaon Civil Hospital on police requisition and the said Ahmed Ali was discharged on 27.01.97. It is i n the evidence of PW10 that the injuries found on the person of Ahmed Ali were a s under: (cid:28)i. Stitch wound placed traversely at vertex. The wound was lacerated with size 3 (cid:29)x 1/4 (cid:29)x1/2 (cid:29) with active bleeding. ii. Loss of upper incisor left half arm active bleeding. (cid:29)

16. were fresh and grievous in nature and caused by blunt weapon. In the opinion of PW10, the injuries found, on the person of Ahmed Ali,

17. So far as PW11, yet another doctor, is concerned, he examined, at Nagaon Civil Hospital, four injured persons, namely, Joinaluddin, Nekbor Ali, Hazarat Ali and Innus Ali. The findings of doctor (PW11), in this regard, are as under: Frontal area of scalp right side. Lacerated injury size 3 (cid:29)x3/4 (cid:29) with mus Occipital area of scalp right side lacerated injury size 4 (cid:29) x ¾ (cid:29) muscle (cid:28)Following injuries were found on the person of Joinaluddin: 1. cle deep vertically placed. Following injuries were found on the person of Nekbor Ali: 1. deep vertically placed. 2. Front of parietal area of scalp left side. Lacerated injury size 3 (cid:29)x4/3 (cid:29) muscle deep.

3. deep. Right leg lower 1/3 lateral aspect. Lacerated injury size 1 (cid:29)x1/2 (cid:29) muscle Left leg medical aspect upper part. Abrasion size 1 (cid:29)x1/2 (cid:29). The patient w

4. as admitted in the male surgical ward on 24.1.97 and was discharged on 29.1.97. 18. sed by blunt weapon. In the opinion of the doctor, the injuries were simple in nature and cau

19. (cid:28)1. ally placed. Following injuries were found on the person of Hazarat Ali: Occipital parietal area of scalp right side stitch wound. Size 3 (cid:29) vertic Right hand dorsum. Lacerated injury size 1 (cid:29)x1/2 (cid:29)x muscle deep.

2. 3. Left elbow joint. Swelling size 3 (cid:29) x 3 (cid:29). Patient was admitted in surgical ward on 24.1.97 and was dischared on 30.1.97. A s per the X-ray report, there was fracture of matecarpal bones. (cid:29) 20. In the opinion of the doctor, the injury No.1 was simple in nature, but the injuries No.2 and 3 were grievous in nature and that the injuries were fresh and caused by blunt weapon. Following injuries were found on Innus Ali: Left forearm lower part swelling size 3 (cid:29)x3 (cid:29) Left upper arm lower 1/3 (cid:29) lateral aspect-stitch wound size. Right forearm middle 1/3 lateral aspect abrasion 1 (cid:29)x1/2 (cid:29).

21. (cid:28)1. 2. 3. As per the X-ray report, there was fracture seen in the lateral part of lower en d of numerous left. Fracture seen with displacement of lower half of radius left . (cid:29)

22. In the opinion of the doctor, injuries No.1 and 2 were grievous in natur e and injury No.3 was simple. The injuries were fresh and caused by blunt weapon .

23. If the evidence given by PW1, PW2, PW3, PW4, PW5, PW6 and PW7 are consid ered in the light of the evidence of PW9, PW10 and PW11, it becomes clear that H azarat Ali, Nekbor, Innus, Ahmed Ali and Phulbanu Bibi were assaulted and injur ed and the injuries included fracture of bones. From the evidence given by these witnesses, the names of the four appellants clearly surface as persons involved in the occurrence of assault on the injured.

24. I may pause here to point out that DW1 has deposed that on 23.01.97, he filed one case against accused Hazarat Ali and others for causing hurt on that d ay at 10 am. The defence has not been able to explain as to how the appellants h ad suffered injuries on their persons and how Phulbanu died if the injured were the persons, who had attacked the accused-appellants. There is not even a partic le of evidence on record to show that accused had sustained any injury on their persons. Thus, there is no credibility in the version of the defence that the ac cused were attacked by the injured persons. In this regard, I may point out that DW2, Kamaluddin, has given evidence that on 23.01.97, there was a quarrel betwe en Hazarat Ali, his son, Joynal Abedin, on one end and radio mechanic, Joinaludd in, and Saiful, on the other, and that, in this regard, a case was filed by Join aluddin, but police settled the matter and, later on, he was reported by Hazarat that Saiful and Joinal were collecting men for assaulting Hazarat Ali (PW5). On the night of 23.01.97, he (DW2), along with Hazarat, Joinal, Nekbor, Ahmed Ali and Hazarat were going to the village of Hazarat to settle the matter, but they were carrying lathis with them for their private defence. However, according to the evidence of DW2, before getting into the house of Hazarat (PW5), a group of 10/12 persons attacked them from both sides of the road, but DW2 could not recog nize the said persons due to darkeness and that he did not see any woman at that time. In his cross-examination, he has, however, admitted that he saw injuries on the persons of Hazarat Ali and others including the wife of Innus. Thus, even the defence has admitted and acknowledged the fact that the injured aforementio ned did sustain injuries.

25. As already indicated above, there is no explanation given by the defence or any explanation discernible from the evidence on record as to how the injure d had come to sustain such serious injuries if they were the ones, who were assa ilants; whereas the accused-appellants and their associates remained completely unhurt.

26. Situated thus, there can be no escape from the conclusion that it is at the hands of the accused-appellants that the injured aforementioned sustained in juries. The injuries sustained by them were not only simple but also grievous in nature. In such circumstances, conviction of the accused-appellants, under Sect ion 323 as well as 325 IPC read with Section 149 IPC, cannot be said to be illeg al or unfounded. Consequently, the conviction of the accused-appellants, under S ections 323 and 325 IPC read with Section 149 IPC, cannot be interfered with.

27. Looking into the gravity of the circumstances, whereunder the accused-ap pellants had assaulted the injured persons, this Court is of the view that the s entences, passed against the accused-appellants, cannot be described as harsh, u nreasonable or excessive. This Court, therefore, does not find any reason to int erfere with the sentence passed against the accused-appellants. This appeal, the refore, fails and the same shall accordingly stand dismissed. Let the LCR be sent back. 28. Let the accused-appellants surrender, forthwith, in the Court of the Chi 29. ef Judicial Magistrate, Nagaon, so as to serve the sentences of imprisonment pas sed against them.