Gauhati High Court
Sri Md. Asar Uddin vs The State Of Assam on 31 August, 2012
Author: A.K.Goel
Bench: A.K.Goel
IN THE GAUHATI HIGH COURT
(High Court of Assam,Nagaland,Meghalaya,Manipur,Tripura,
Mizoram and Arunachal Pradesh )
CRIMINAL APPEAL (J) No. 48 of 2006
Sri Md. Asar Uddin,
Son of Md. Sonahar Ali,
Vill-Madhur Bond,
P.S- Patharkandi, District- Karimganj,
Assam
................Appellant
-Versus-
The State of Assam
............... Respondent
PRESENT HON'BLE THE CHIEF JUSTICE MR. A.K.GOEL HON'BLE MR. JUSTICE B. D. AGARWAL For the Appellant ... Mr.I Uddin, learned Amicus Curiae For the Respondent ... Mr.D Das , learned Additional P P Date of Hearing ... 10.08.2012 Date of judgment ... 31.08.2012 JUDGMENT & ORDER (CAV) (B D Agarwal,J) The appellant herein is none else but the brother of the deceased. He has been convicted under Section 302 IPC and has been sentenced to undergo Imprisonment for Life and also to pay fine of Rs.5000/- (Five thousand) with default sentence of further rigorous Crl.Apl.No. 48(j) of 2006 Page 1 of 8 Nivedita imprisonment for 3(three months) vide impugned judgment dated 18.2.2006 passed by the learned Additional Sessions Judge( Adhoc) , Karimganj in Sessions Case No.86 of 2004. Being aggrieved with the conviction and sentence, the convict has preferred this appeal from jail.
2. We have heard Mr. I Uddin, learned Amicus Curiae for the appellant and Mr. D Das, learned Additional Public Prosecutor for the State. We have also perused the impugned judgment and the evidence given by the prosecution in the trial court. Though a plea was taken in the cross-examination of the prosecution witnesses that the incident took place after a brief altercation and quarrel no evidence was tendered by the accused in his defence.
3. The prosecution case in brief is that the families of the deceased and the accused persons used to live nearby. The deceased had also cultivable land at short distance of 100 cubits. Having noticed damage of newly grown paddy the deceased called the father of the accused to show him the damaged crop. While the father of the accused and the deceased were proceeding to the paddy filed, the appellant suddenly followed them and after pushing his father (Sonohar Ali) dealt repeated dao blows on the vital organs of the deceased Atar Ali. Thereafter, the deceased was brought home where he succumbed to the injuries.
4. FIR was lodged by one of the sons of the deceased (PW-2) on the same evening. It was registered as Patherkandi Police Station Case No. 100 of 2000 under section 302 IPC read with section 34 IPC. It may be mentioned here that in the FIR, father, mother and two brothers of the appellant were also impleaded as co-accused.
Crl.Apl.No. 48(j) of 2006 Page 2 of 8Nivedita However, after investigation, charge sheet was submitted only against three accused persons and after the trial, only the appellant has been convicted and the co-accused Sonohar Ali and Khoya Uddin have been acquitted from the offence of murder.
5. As could be gathered from the record, only 8 witnesses were examined by the prosecution. PW-1 is the medical officer, who had conducted the autopsy of the dead body; PWs -2 and 3 are the sons and daughter of the deceased; PWs -4, 6 and 7 are the co-villagers; PW-5 is the cousin of the deceased; PW-8 is the I.O.
6. First of all, it would be proper to look at the numbers and nature of the injury inflicted upon the deceased, which are as below:
" (i) Incised wound measuring 5" x 3" x bone deep with all vessels cut on left neck placed obliquely on upper part; (ii) incised wound on right temporal region 4" x 2" x bone deep; (iii) incised wound on left palm with evulsion of all fingers except little at the root."
7. In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of the injuries, which was ante- mortem in nature. The place of the wounds, inflicted on the dead body and also its depth gives little scope to us to question whether the assailant had any intention or not to cause the death of the victim. We find no hesitation to hold that the offender had definite intention to commit the murder.
8. With regard to the complicity of the appellant, we find ocular testimony of PWs-2 and 3. These two witnesses are son and daughter Crl.Apl.No. 48(j) of 2006 Page 3 of 8 Nivedita of the deceased respectively. They have deposed in tandem that while their father (deceased) was taking the appellant's father to the paddy field to show that their cattle had damaged the crop the appellant came running to the place of occurrence and after pushing his father aside dealt repeated dao blows upon the deceased. PWs-2 and 3 were given a suggestion in the cross-examination that a quarrel had taken place at the place of occurrence regarding the allegation of damage of the crop. However, neither any prosecution witness accepted this story nor the accused tendered any evidence in this regard. Both the witnesses were suggested that the offence was not committed by the appellant but at the same time, a contradictory suggestion was given to PW-2 that when the appellant was about to be assaulted he snatched the weapon from the assailants' hands and fled away to save himself, brandishing the weapon. Although the suggestion is incomplete it can be inferred from the suggestion that the deceased must have sustained injuries accidentally while the appellant was brandishing the weapon to save his life. As per the aforesaid suggestion, the appellant was gheraoed by the deceased and his sons and few others. In our considered opinion, the suggestion is absolutely unbelievable and absurd. It is difficult to believe that a single person would have been capable to snatch one dao while he was being attacked by a group of 4 to 5 persons, armed with various weapons. Strangely, the story of snatching the dao and brandishing the same to protect his own life given to PW-2 in the cross- examination was not given to PW-3.
9. PW-4 has deposed that he was told by one boy that the appellant and his brothers had committed the murder. However, PW- 4 has failed to disclose the name of the boy and as such; his testimony Crl.Apl.No. 48(j) of 2006 Page 4 of 8 Nivedita has been rightly brought into the category of hearsay evidence by the learned Sessions Judge.
10. PWs- 5 and 6 are the cousins of the deceased. PWs-5 and 6 were reported about the incident by PW-2. According to this witness, hearing the incident, they went to the house of the deceased and on being inquired PW-2 told that his father was assaulted by the appellant with a dao.
11. PW-7 is also a witness from the neighbourhood. This witness has also deposed that hearing the outcry of PW-2, he rushed to the paddy field and found the deceased lying injured and thereafter, he helped PWs- 2 and 3 to bring the deceased to home. Though PW-7 did not see the actual assault but he was told by PWs 2 and 3 that their father was assaulted by the appellant. In this way, PWs 5 , 6 and 7 have also corroborated the ocular testimony of PWs 2 and 3.
12. In the case of Krishna Mochi -vs- State of Bihar: (2002) 6 SCC 81, the Hon'ble Supreme Court has held that it is the quality of the evidence that matters and not the number of witnesses, who give such evidence, and conviction can be based on the basis of evidence of a solitary witness provided it is credible and trustworthy.
13. Similarly, in the case of State of Rajasthan -Vs- Kalki (AIR 1981 SC 1390) it has been held that the testimony of related witnesses cannot be thrown overboard and in appropriate cases, the relatives are the best witnesses, who are less likely to shield real culprits and implicate innocent persons. While setting aside a judgment of acquittal on the basis of ocular testimony of the wife of the deceased Crl.Apl.No. 48(j) of 2006 Page 5 of 8 Nivedita their Lordships have distinguished the evidentiary value of 'related' and 'interested' witness in the following words:
"A witness may be called 'interested" only when he or she derives some benefits from the result of a litigation; in the decree in a civil case or in seeing an accused person punished. A witness who is natural one and is the only possible eye witness in the circumstances of the case cannot be said to be 'interested'. In the instant case the PW 1 had no interest in protecting the real culprits and falsely implicating the respondents"
14. In the case before us, PWs-2 and 3 are the son and daughter of the deceased and they are less likely to implicate an innocent person, more so when the appellant is none else but their own uncle. Beside the eye witnesses' account of PWs 2 and 3, their testimonies are also corroborated by PWs -4, 5 and 6.
15. With regard to the defence plea that the incident occurred due to sudden quarrel and altercation regarding damage of crop by the cattles of the accused persons, we are of the opinion that it is difficult to take a view that Exception -4 to Section 300 of the IPC would be attracted. In the cases of Sukhdev -v- State of Punjab: reported in (2007) 15 SCC 364 and State of Rajasthan -v- Islam: (2011) 6 SCC 343, the Hon'ble Supreme Court has held that if the defence pleads that Exception- 4 to Section 300 IPC should be invoked it is necessary for the accused to establish that all the circumstances and ingredients of Exception 4.
16. Under Exception- 4 to Section 300 IPC, a murder can be held to be culpable homicide not amounting to murder if the murder is committed without pre-meditation, upon a sudden fight; in a hit of Crl.Apl.No. 48(j) of 2006 Page 6 of 8 Nivedita passion and upon a sudden quarrel and also if the offender does not take undue advantage of the situation or does not act in cruel or unusual manner. In the case at hand, there is no evidence of any quarrel in between the deceased and the appellant. Besides, the deceased was unarmed and the appellant struck dao blows repeatedly on vital organs of the deceased, particularly neck and temporal region. Under such circumstances, we rule out the possibility of attracting Exception-4 to Section 300 IPC, so as to convert the offence from Section 302 to Section 304 IPC.
17. In the result, we hold that there is no merit in the appeal. Consequently, the appeal stands dismissed.
18. The learned Amicus Curie is entitled to one day's hearing fee from the Legal Services Authority.
19. In view of the provisions prescribed by Section 357-A Cr.P.C., the victim or his/her dependants are entitled to get compensation for rehabilitation in appropriate cases. In view of the law laid down in the case of Jalilur Rahman -vs- State of Assam, reported in 2012(1) GLT 238, with regard the victim compensation, as provided by Section 357-A Cr.P.C., we make the following directions:
(i) As an interim measure, an amount of Rs.50,000/- (Fifty Thousand) shall be deposited by the State Government with the District Legal Services Authority of Karimganj District within a period of two months from this date. The District Legal Services Authority, on receipt of the said Crl.Apl.No. 48(j) of 2006 Page 7 of 8 Nivedita money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and if such dependent(s) or legal representative(s) need any rehabilitation.
(ii) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, than the District Legal Services Authority, shall refund the said amount of Rs.50,000/-
(Fifty Thousand) without delay, in favour of the State Government.
JUDGE CHIEF JUSTICE
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Nivedita