Calcutta High Court (Appellete Side)
Babar Ali & Ors vs State Of West Bengal on 19 May, 2011
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
1
FORM NO.(J1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
Hon'ble Justice Girish Chandra Gupta
And
Hon'ble Justice Raghunath Ray
C.R.A. No.8 OF 2004
BABAR ALI & ORS.
VS.
STATE OF WEST BENGAL
Advocate for the appellant: Mr. Sekhar Basu
Advocate for the respondent: Mr. Sk. Abdus Salam
Ms. S. Sultan Hearing concluded on: 7th April 2011 Judgment delivered on: 19th May, 2011 GIRISH CHANDRA GUPTA J.
This appeal is directed against a judgment and order dated 11th November 2003 by which the eight accused persons were convicted of an offence punishable under Sections 148/149/302 of the Indian Penal Code by the learned Additional Sessions Judge, Birbhum at Rampurhut and by an order dated 12th November 2003 all the aforesaid convicts were sentenced to rigorous imprisonment for life with a fine of Rs.5000/-, in default of payment to undergo further rigorous imprisonment for one year for the offence punishable under Sections 149/302 of the Indian Penal Code. They were also sentenced to undergo two years rigorous imprisonment under Section 148 IPC. Both the sentences were however directed to run concurrently.
2The facts and circumstances of the case briefly stated are that on 5th April 1991 at about 4 P.M. Khabir Ali riding his bicycle was returning home. He was waylaid by the accused persons and severely beaten by deadly weapon like hesua. He was rushed to the Murarai hospital. He did not however survive and died at about 10.10 P.M. Mr. Basu, learned Advocate appearing in support of the appeal advanced two submissions:
a) he criticised the evidence of the witnesses in order to assess involvement of the accused persons and
b) he contended that the offence is not one punishable under Section 302 but could at best be an offence under Section 304 of the Indian Penal Code.
In order to examine the submissions of Mr. Basu we shall first deal with the evidence of the eyewitnesses.
PW 3 Jahanara Begam is an eyewitness. She deposed in her examination-in- chief, inter alia, as follows:-
"I went to bring water from the tube well; that tube well is situated on the western side of road of my father's house and that road is situated in front of our house. Moijuddin was also coming with two buckets in hand for fetching water. Bunu caught hold of Moijuddin. At that time Khabir Ali was coming by cycle. When Khabir Ali came near our cowshed by the side of a culvert, Babar and Mozammel detained Khabir Ali by catching the handle of the cycle. Abdul went there and slapped Khabir Ali on his cheek.3
Thereafter Moijuddin escaped and he stood nearby. Thereafter accd. persons vis., Bunu, Dudgha, Danesh, Ahamuddin, Sahamuddin and other accd. Persons who are present in dock today caught hold of Khabir Ali and took him to the courtyard of Bunu. Thereafter all the accd. Persons assaulted Khabir Ali on different parts of his body. Khabir Ali shouted and thereafter he was silent. Then Harejunessa, the wife of Khabir Ali came to the courtyard of Bunu and requested the accd. Persons to let her husband go. Thereafter, I came to my house."
During her cross-examination she deposed, inter alia, as follows:-
"I cannot remember whether the wife of Khabir saw the entire incident or not. Blood was oozing from the body of Khabir Ali. Khabir was conscious after sustaining injury. I said to every person that Khabir was conscious after sustaining injury upon his person. I stated to my mother that the wife of Khabir came to save Khabir Ali. After narrating the incidents to my mother I am deposing before this Court regarding the incident. Many persons came to the P.O. I cannot remember whether I saw any "Loot- Pat" at the relevant time. I cannot say as to who removed the body from the P.O. after the incident.
There was only one tube well where Khabir was caught hold of."
Mr. Basu contended that this witness had named only four accused persons. That is not however a correct reading of her evidence as would appear from the following sentence "Thereafter accd. persons vis., Bunu, Dudgha, Danesh, Ahamuddin, Sahamuddin and other accd. Persons who are present in dock today caught hold of Khabir Ali and took him to the courtyard of Bunu. Thereafter all the accd. Persons assaulted Khabir Ali on different parts of his body. Khabir Ali shouted and thereafter he was silent. Then Harejunessa, the wife of Khabir Ali came to the 4 courtyard of Bunu and requested the accd. Persons to let her husband go. Thereafter, I came to my house."
PW 6 Anwara is the mother of the PW 3. She is also an eyewitness. She deposed in her examination-in-chief, inter alia, as follows:-
"I knew Khabir Ali of our village. Khabir Ali was murdered about 10 or 12 years ago at about 4.00 P.M. At the relevant time, I sent my daughter to bring water from the tube well and I was standing inside the front door of my room. My daughter Jahanara who went to bring water from the tube well, all on a sudden, shouted by saying that Moijuddin was caught hold of by accd. Bunu alias Khairul Alam. Thereafter I came out from my room. I saw that Moijuddin was caught hold of by Bunu and Moijuddin was trying to save himself from the clutch of Bunu. At that time Khabir was coming by cycle. Thereafter, accd. Babar and Mozammel detained the cycle of Khabir Ali. Thereafter, accd. Abdul slapped Khabir Ali on his cheek. Thereafter, Khabir Ali fell down. Thereafter accd. Mannan hurt Khabir Ali on his leg with a hasua. Accd. Sahmuddin, Ahamuddin, Dinesh, Dugda, Hannan, Babar, Mojam and Bunu- in all nine accd. Persons took Khabir Ali to the courtyard of Bunu assaulting him. Khabir Ali requested the accd. Persons to escape or let him go, but the accd. Persons said that they would finish him. Except. Accd. Bunu alias Khairul Alam, all the eight accd. Persons are present in dock today (identified)."
Mr. Basu contended that deposition of the PW 6 as regards the nature of the assault may not be correct. We have however not been impressed by this submission considering the admitted fact that within six hours of the incident the victim died.
PW 4 Manowara Begum deposed during her examination-in-chief as follows:-
5"I knew Khabir Ali of our village. Khabir Ali was murdered. About 10 or 11 years ago, Khabir was murdered at about 4.00 P.M. All the accd. Persons excpet Bunu alias Khairul Alam are present in dock (dentified). These accd. Persons along with accd. Bunu alias Khairul Alam murdered Khabir Ali. I was standing at my front doors of my house. Accd. Persons were assaulting Khabir Ali. Mannan advanced towards me with a hasua in hand. I entered my house out of fear.
Mr. Basu in assailing the deposition of this witness drew our attention to the following sentence from her cross-examination "I did not see the accused persons to assault Khabir Ali". Mr. Basu contended that this is a clear admission to show that the PW4 did not witness the incident or at any rate she did not witness the incident fully. The sentence singled out by Mr. Basu cannot be read in isolation at the time of appreciating the deposition of a rustic woman in connection with an incident which happened more than 10 years ago before she came to depose in Court. Court can ill- afford to be over jealous in seeking to find an opportunity to discard the evidence of most natural witness. How was this female trapped during cross-examination would be evident from the following portion of her deposition during cross-examination:-
"I saw only the accd. Persons from my front door. The incident took place in front of my entrance door. I cannot say the descriptions of the dresses of all the accd. Persons at the relevant time. I did not see the accd. Persons to assault Khabir Ali."
The deposition of this witness is reassuring because the accused Mannan with a hesua in his hand, chased her, obviously with the object to ensure absence of any eyewitness, as would appear from her examination-in-chief which we have quoted above. We are as such unable to find any fault with her evidence.
6PW 1 Harekjaan Bibi is the widow of the deceased. She had rushed to the place of occurrence after hearing the cry of her husband for help. The fact that she pleaded for mercy to the accused persons has been well established by her deposition. The fact that the accused persons did not pay any heed to her plea is also well established. She has admitted during her examination-in-chief itself that she heard about the incident from her deceased husband. This goes to show that she reached the place of occurrence after the assault had started. She had ascertained from her husband about the incident. She had reached the place of occurrence while the accused persons were still there. It is quite likely that she may have confused part of the incident which she herself witnessed and balance which she heard from her husband but her evidence has the added advantage of res gestae under Section 6 of the Evidence Act. The first statutory illustration appended thereto is material for our purposes which reads as follows:-
"A is accused of the murder of B by beating him. Whatever was said or done by a or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."
Therefore the criticism of Mr. Basu that the PW 1 is not an eyewitness is not acceptable. PW 3 during her cross-examination deposed that the wife of Khabir came to save him. We are as such unable to brush aside the evidence of the PW 1 who, as a matter of fact, is the person who took the victim first to Murarai Police Station and lodged the written complaint with the PW 13.
PW 2 Habibul scribed the written complaint.
7PW 7 is the brother of the victim. He rushed to the place of occurrence after hearing about the incident. He upon enquiry came to know from the victim himself that the accused persons had assaulted him.
The victim was given the earliest medical assistance by the PW 11 Dr. Jugol Kishore Panja the Medical Officer of Murarai Public Health Center. Dr. Panja deposed as follows:-
"On 5-4-91, I was attached to Murarai P.H.C. as M.O. On that day, I examined one Khabir Ali, aged 32 years, Muslim male, sex male, son of late Based Ali of village Bilaspur, P.S. Murarai, Dist. Birbhum. Before his examination the patient narrated the history of assault. I recorded the history of assault from the mouth of Khabir Ali. Khabir Ali stated that he was assaulted by Abdul Sk., Mannan Sk., Babar sk., Danesh Sk., Dugdha Sk., Mozammel Hossain, Asamuddin Sk., Jahamuddin Sk., Bunu Sk. With hasua and lathi on 5.4.91 at around 4.00 P.M. On examination I found the following injuries upon Khabir Ali.
1. Patient conscious. General condition-very low.
2. One lacerated injury of about 1 c.m. X 1 c.m. X 1 c.m. on the medial aspect or side of right leg about 5 c.m. above right medial maleolous.
3. Extremely lacerated injury over the anterior aspect of left leg in the region of ankle joint of left leg.
4. One transversed incised wound of about 5 c.m.X 1 c.m. X 1 c.m.
(approx) in the lateral aspect of the upper part of right leg about 5 c.m. below the right knew joint. Age of injury-fresh; types of weapons used may be caused by sharp as well as blunt and hard object or weapon."
The statement of the victim was recorded by the PW 11 which reads as follows:-
8"The patient gives the history of being assaulted by Abdul Sk., Mannan Sk., Babar sk., Danesh Sk., Dugda Sk., Mozammel Hossain, Ashamuddin Sk., and Jahamuddin Sk., Bunu Sk., with hasua and lathi on 5.4.1991 at about 4 P.M."
The statement of the victim has been marked Exbt.5. The evidence of the PW 11 was not assailed by Mr. Basu.
The PW 11 considering the condition of the victim very serious referred him to Rampurhut Sadar Hospital where the victim died at 10.10 P.M. PW 12 Dr. Mazumdar conducted the postmortem examination on 6th April 1991. His evidence as regards the examination conducted by him is as follows:-
"On examn. I found as follows:-
1. One lacerated injury 2"X1"X muscle deep over the lateral side of the upper part of the right leg below knew;
2. Fracture of right leg (compound) in the lower part;
3. Extensive laceration of the left ankle region with compound fracture of both tibia and fibula;
Extensive compound fracture group of tender expose in the ankle region and dorsal aspect of the left foot. Plenty of blood clots seen in and around the wound.
Heart-both chambers healthy; stomach-contents semi-digested food particle; liver, spleen, kidney and lungs-all are pale; bladder- empty; organs of generation (external and internal)- healthy. In my opinion, the cause of death is due to shock and haemorrhage from the aforesaid injuries which are ante mortem and might be homicidal in nature."
Mr. Basu contended that the postmortem examination report does not show that the assault was spread over different parts of the body. He may be right but the evidence of the Autopsy Surgeon (PW 12) goes to show a barbaric assault resulting 9 in extensive fractures and bleeding injuries which caused the death of the victim within a matter of hours.
We have thus examined the evidence of the witnesses including the submissions advanced by Mr. Basu. We are of the opinion that the criticism advanced by Mr. Basu is not acceptable. The unarmed victim without least provocation or any excuse was waylaid, severely assaulted with deadly weapon like hesua and was killed by the appellants and the absconder Bunu. Therefore the first submission of Mr. Basu is rejected.
The second submission advanced by Mr. Basu that the offence is one under Section 304 IPC and not under Section 302 IPC has also not impressed us. The judgments cited in this regard are all distinguishable. The first judgment cited by him was in the case of Chowa Mondan & Anr. Vs. State of Bihar ( now Jharkhand) reported in 2004 (1) Supreme 861. In that case the High Court had confirmed the conviction and sentenced all the appellants under Section 302 read with Section 34 of the Indian Penal Code but the Apex Court scaled down the conviction under Section 326 of the Indian Penal Code read with Section 34 thereof for the following reasons:-
"The incident in question occurred on the spur of the moment without there being any intention of causing death or of causing such injury as they knew was likely to cause death, and was an act arising out of the enmity they had with the nephew of the deceased and aggravated by the unwanted questioning by the deceased. From the evidence it is clear that the act of the appellant cannot be construed as an act other than causing grievous hurt."10
This judgment has no manner of application to the facts and circumstances of this case. We already have indicated that there was neither any provocation nor any excuse available to the accused persons to have indulged into the monstrous act culminating into the death of the victim.
The second judgment cited by Mr. Basu was in the case of State of Andhra Pradesh vs. Naragudem reported in JT 2004 (3) SC 36. In that case the Apex Court was hearing an appeal of the state against the judgment of the High Court allowing the appeal. The High Court in fact had altered the conviction from one under Section 302 IPC to Sections 324 and 325 IPC. The Supreme Court did not interfere and came to the conclusion that "keeping in mind the fact that these injuries had been caused by lathis and the assailants have not used any sharp-edged weapon nor have they attacked the victim on any vital part of the body like head or chest leading to injuries to the internal organs or to haemorrhage, merely from the injuries noted hereinabove, it is extremely difficult for us to accept the argument of the State that the High Court was not justified in coming to the conclusion that the injuries caused to the deceased would not be one attracting the provision of Section 302 IPC". The evidence in our case however goes to show that the deadly weapon like hesua was used. Therefore the aforesaid judgment in which only lathi was used has no manner of application.
The third judgment cited by Mr. Basu was in the case of Augustine Saldhana vs. State of Karnataka reported in 2005 SCC (Criminal) 1313. In this case the learned trial Judge had recorded a finding of acquittal. The state of Karnataka preferred an appeal. The High Court set aside the order of acquittal and the accused Augustine held guilty of offence punishable under Section 302 IPC. The Apex Court 11 scaled down the conviction under Section 304 Part II IPC due to the following reasons:-
"It needs to be noted that only one blow was given in the dark night. Though it cannot be said as a rule of universal application that whenever one blow is given application of Section 302 IPC will be ruled out and that even a single blow delivered with a heavy or dangerous weapon on a vital part of the body would make the offence a murder. On the peculiar facts found in the present case, we feel that clause "thirdly" of Section 300 cannot be applied. The blow was said to have been delivered with a stick and in pitch dark night-time in the forest surroundings of the area where it occurred. It could not reasonably be stated with any certainty that the accused chose that vital part of the body to inflict the injury and that the blow which was aimed without any of such specific intention could have landed on the head due to so many other circumstances, than due to any positive intention also. We, therefore, alter the conviction of appellant Augustine Saldanha from Section 302 IPC to Section 304 Part II. Custodial sentence of eight years would meet the ends of justice."
No elaborate reasoning is required to show that the case with which we are concerned is altogether different on facts where there were nine persons assaulting the victim like an animal with deadly weapon like hesua. The PW 3, as a matter of fact, deposed that the accused persons were shouting that they would finish him. These facts are wholly different from the fact in the case of Saldhana wherein only one blow was given by a stick that too in the darkness which resulted in death of the victim. Therefore the judgment in the case of Augustine Saldhana has no manner of application to the facts and circumstances of the case in hand.
The fourth judgment cited by Mr. Basu was in the case of Khuman Singh vs. State of M.P. reported in 2005 SCC (Criminal) 1451. In that case the conviction 12 under Section 302 recorded by the trial Court was upheld by the High Court. The Supreme Court scaled down the conviction under Section 304 Part II of the Indian Penal Code because the Apex Court concluded that "this injury was not intended by the appellants, and the injury suffered by the deceased on his liver was at best accidental." It is not even contended by Mr. Basu that any of the injuries in the present case was accidental. Therefore the judgment in the case of Khuman Singh has no application to the case in hand.
The last judgment cited by Mr. Basu was in the case of Rajinder vs. State of Haryana reported in 2006(2) SCC (criminal) 469. This judgment has no manner of application because what had happened in that case was that there was enmity between the accused and the victim. The accused entertained a belief that the victim had acted as an informer under the NDPS Act. He had declared an intention to teach a lesson to the victim. At an opportune moment he shot a fire in the thigh of the victim. The Supreme Court was of the opinion that the conviction under Section 302 could not be supported and the same was reduced to Part II of Section 304 IPC. No elaborate reasoning is required to show that the case before us is altogether different. The victim in this case had no enmity with anyone. He was unarmed. He was returning home in a bicycle. He was waylaid and mercilessly beaten by deadly weapon causing extensive fracture and lacerated injury as would appear from the evidence of the Autopsy Surgeon and he died within a matter of hours. This case is clearly within the four corners of the provision fourthly of Section 300 of the IPC which provides as follows:-
"If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any 13 excuse for incurring the risk of causing death or such injury as aforesaid."
In such a case unless the accused can bring the matter within the four corners of any of the exceptions engrafted under Section 300 of the IPC they cannot avoid liability for murder. Reference in this regard may be made to the judgment in the case State of MP vs. Ram Prasad reported in AIR 1968 SC 881 para 8.
"The question then arises, what was the offence which Ram Prasad can be said to have committed? The offence of causing injury by burning is a broad spectrum which runs from Section 324 causing simple injury by burning through Section 326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself. The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all account. The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder. We think that the matter goes a little further than this. As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad falls within culpable homicide not amounting to murder or the higher offence of murder itself. Here we see that death has actually been caused by the criminal act in other words, there has been homicide and since it is not accidental or suicidal death, responsibility for the homicide, in the absence of any exceptions or extenuating circumstances, must be borne by the person who caused it. The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting to murder. The question is whether the offence falls in any of the clauses of Section 300 of the Indian Penal Code. In this connection it is difficult to say that Ram Prasad intended causing the death of Mst Rajji although it might well be the truth. That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of Section 300, but all the other clauses also. We do not wish to consider the second 14 and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst Rajji. That would be a matter of speculation. In our opinion, this matter can be disposed of with reference to clause fourthly of Section 300. That clause reads as follows:
"... culpable homicide is murder ... if the person committing the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid".
It is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death. The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause. Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within fourthly of Section 300 of the Indian Penal Code. In other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death. We are accordingly of the opinion that the High Court and 15 the Sessions Judge were both wrong in holding that the offence did not fall within murder."
Reference may also be made in this regard to the judgment in the case of Santosh v. State of M.P., (1975) 3 SCC 727, at page 730 :
"After examining all the evidence relating to the participation of the appellant and others in the riot we are left in grave doubt whether the assembly had a common object of killing any one at all, even if such was really the object of any particular member or members of the unlawful assembly. It may be that those who cut the limbs of men who lost their lives due to bleeding could reasonably be held liable for murder. But, it seems to be unlikely that each member, considering the nature of the riot and the different acts of different members of the riotous assembly, had such an object. This was exactly the view adopted by this Court in Chikkarange Gowda case."
Reference may also be made to the judgment in the case of Bhagwan Munjaji Pawade v. State of Maharashtra, reported in AIR 1979 SC 133:
We do not think much can be made out of the stray observation of the High Court "that the appellant had far exceeded his right of private defence". The circumstances of the case disclose that no right of private defence, either of person or of property, had ever accrued to the appellant. The deceased was unarmed. Exception 2 can have no application. It is true that some of the conditions for the applicability of Exception 4 to Section 300 exist here, but not all. The quarrel had broken out suddenly, but there was no sudden fight between the deceased and the appellant. 'Fight' postulates a bilateral transaction in which blows are exchanged. The deceased was unarmed. He did not cause any injury to the appellant or his companions. Furthermore no less than three fatal injuries were inflicted by the appellant with an axe, which is a formidable weapon on the unarmed victim. Appellant, is therefore, not entitled to the benefit of Exception 4, either.16
The submissions advanced by Mr. Basu have thus been disposed of. We have in the circumstances no option but to confirm the judgment including the sentence inflicted by the learned trial Court. In the result the appeal fails and is dismissed. The appellants are directed to surrender forthwith and to serve out the sentence passed by the learned trial Judge. The learned trial Court is directed to take the appellants in custody if they do not surrender forthwith.
Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith.
Urgent xerox certified copy of this judgment, be delivered to the learned Advocate for the parties, if applied for, upon compliance of all formalities.
(GIRISH CHANDRA GUPTA J.)
I agree. (RAGHUNATH RAY J.)