Tripura High Court
Samsul Islam vs The State Of Tripura on 26 April, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
CRL. A. (J) No.17 of 2012
1. Samsul Islam,
son of Mullah Muhammad Ali,
2. Saiful Islam,
son of Mullah Muhammad Ali,
3. Golab Ali,
son of Abdul Khaleque,
4. Mujib Ali,
son of Abdul Khaleque,
-all are residents of Sonapur, Irani, P.S.
Kailashahar, District - Unakoti, Tripura
....... Appellants
-Versus-
The State of Tripura
...... Respondent
BEFORE THE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellants : Mr. P.K. Biswas, Sr. Advocate, Mr. P. Majumder, Advocate Ms. P. Mog, Advocate For the respondent : Mr. R.C. Debnath, Addl. P.P. Date of hearing : 14.02.2017 Date of judgment & order : 26.04.2017 Yes No Whether fit for reporting : √ JUDGMENT & ORDER (S. TALAPATRA, J) By this appeal under Section 374(2) of the Cr.P.C, the convicts namely, Samsul Islam, Saiful Islam, Golab Ali and Mujib [2] Ali, hereinafter referred to as the appellants, the judgment and order of conviction of sentence dated 09.05.2012 delivered in ST 61 (NT/K) of 2011 by the Sessions Judge, North Tripura, Kailashahar has been challenged. The appellants have been sentenced to suffer rigorous imprisonment for 7(seven) years and to pay a fine of `10,000/- each, in default to pay the fine, they are to suffer simple imprisonment for 6(six) months for commission of offence punishable under Section 304-Part-II read with Section 34 of the India Penal Code. They have been further sentenced to pay a fine of `1,000/- each and in default, to suffer simple imprisonment for one month for commission of offence punishable under Section 323 read with Section 34 of the Indian Penal Code.
[2] One Asid Ali, PW-1 on 18.03.2011 filed a written ejahar disclosing that the accused persons whose names have been catalogued in the said ejahar on an incident of altercation between Rajib Ali, son of Abdul Khaleque and Farid Ali, son of Abdul Majid [nephew of the informant, Asid Ali] and one Ismail Ali, son of Aklich Ali which occurred in the Irani High School as Rajib, Farid and Ismail all were the students of the said school, the accused persons namely, Abdul Khaleque, Saiful Islam, Samsul Islam, Golab Ali, Mujib Ali and Ajijur Rahman raided the school with dao, lathi etc. by boarding an auto-rickshaw belonging to Ajijur Rahman. They broke out in free fight. Suruk Ali, Farid Ali and Firuj Ali had sustained bleeding injuries having received the CRL.A.(J) No.17 of 2012 Page 2 of 15 [3] lathi blows from Saiful Islam and Samsul Islam. They were immediately taken to Kailashahar Hospital, but Suruk Ali was immediately referred to the GBP hospital, Agartala for better management of the injuries.
[3] Based on the said ejahar, Kailashahar P.S. case No.62 of 2011 under Section 325 read with Section 34 of the IPC was registered and taken up for investigation. But on the intervening night of 19/20.03.2011, Suruk Ali succumbed to the injuries. As a result, the investigation was conducted also under Section 302 read with Section 34 of the IPC. After completion of the investigation, the final police report was filed only against the appellants on discharging Abdul Khaleque and Ajijur Rahman from criminal liability as during the investigation no incriminating evidence was available against them. On commitment, the Sessions Judge, North Tripura, Kailashahar, as he then was, hereinafter referred to as the trial court, took cognizance and framed the charge against the appellants separately under Section 323 read with Section 34 of the IPC and Section 302 read with Section 34 of the IPC. The appellants pleaded innocence and claimed to be tried.
[4] In order to substantiate the charge, the prosecution adduced as many as 25(twenty five) witnesses and few documentary evidence [Exbts.P/1 to P/3] including the written ejahar, injury report and the postmortem report. CRL.A.(J) No.17 of 2012 Page 3 of 15 [4]
From the defence , excerpts of the statements recorded by the police under Section 161 of the Cr.P.C. have been introduced in the evidence as Exbt.D/1 to Exbt.D/12 respectively of Asid Ali, Tajul Islam, Akramul Islam, Akkas Ali, Ajir Uddin, Farid Ali, Firuj Ali, Jarida Bibi, Fakrul Islam and Ismail Ali.
After the prosecution evidence was recorded, the appellants were examined under Section 313 of the Cr.P.C. separately to have their response in respect of the incriminating materials as surfaced in the evidence. The judgment of conviction under Section 304-Part-II read with Section 34 of the IPC and under Section 323 read with Section 34 of the IPC as stated has been returned on appreciation of the evidence. [5] Mr. P.K. Biswas, learned senior counsel appearing for the appellants has submitted that on the basis of the testimonies of PWs-6,12,13,14 & 16, the appellants have been convicted. It appears from the records that all those witnesses were injured in that free fight. Mr. Biswas, learned senior counsel appearing for the appellants has also submitted that PW-1 is not an eye witness, having gathered the information from Farid Ali [PW-13], he lodged the ejahar. What he had learnt he had narrated in the ejahar [Exbt.P/1] and reiterated the same narrative in the trial. According to his information, Samsul, Saiful, Golab Ali, Ajijur Rahman, Abdul Khaleque came by an auto rickshaw and attacked Farid Ali in the verandah of the school. The teachers came out and saved him. Thereafter, his brother, Firuj Ali came and charged CRL.A.(J) No.17 of 2012 Page 4 of 15 [5] those persons who had beaten Farid. Then Firuj Ali was also assaulted by those persons. Firuj ran away from the school. Suruk Ali came to the spot and asked who were the persons beating his brother. Then those 6(six) persons attacked him. According to PW-1, Ajijur Rahman caught him on the waste and Samsul Islam hit him by lathi. When Suruk managed to get himself released, he tried to run away but he fell down. Then Samsul, Golab Ali, Mujib Ail and Abdul Khaleque all assaulted him by lathi. He heard this fact from Farid And Firuj Ali. Suruk was referred to the GBP hospital as his condition was serious. Md. Achaddar Ali [Pw-23] wrote the ejahar at his dictation and he lodged the same in the police station. He is also the seizure witness of wearing apparel of Farid Ali. He denied the suggestions as projected to dent his statements in the examination-in-chief. Though he denied that he did not tell the police officer that Ismail Ali was his nephew but such statement was available in his previous statement recorded under Section 161 of the Cr.P.C and that part of the statement was marked as Exbt.D/1.
[6] PW-2, Haji Askar Ali is a seizure witness of two lathis [Exbt.M.O.2 series].
PW-3, Tajul Islam has stated that on 18.03.2011 at about 2-2.30 pm. he was in his house and heard hue and cry from Irani High School. He rushed there. There he saw an auto- rickshaw. He also saw Samsul Islam, Saiful Islam, Mujib Ali, Hajijur Ramhan, Golab Ali and Abdul Khaleque assaulting Firuj Ali. CRL.A.(J) No.17 of 2012 Page 5 of 15 [6] When Firuj somehow managed to escape, Suruk Ali came to that place and he was attacked by the appellants and the other accused, Ajijur Rahman. He has categorically stated that 4(four) accused persons namely, Saiful Ali, Samsul Uddin, Golab Ali and Mujib Ali are wielding lathi. Being assaulted by them, Suruk Ali fell on the ground. When they wanted to go away from the place of occurrence, Fakrul Islam restrained them. Suruk was referred to the GBP hospital. In the cross-examination, he stated that Farid Ali and Suruk Ali are his cousins and all the persons who were involved in that free fight were known to him. Even though he had denied in the cross-examination that he tried to strike out a compromise but the excitement was not conducive but a resembling statement was located. Excerpt from the previous statement was therefore marked.
[7] PW-4, Akramul Islam also came to the place of occurrence after hearing the hue and cry from the school and he saw Saiful, Samsul, Mujib, Ajijur Rahman, Golab Ali and Abdul Khaleque assaulting Firuj Ali. When Firuj ran away, Suruk Ali came to the place of occurrence and then those persons assaulted Suruk. Saiful Islam assaulted Suruk Ali again, when he tried to run away. Suruk Ali fell down on the ground. Fakrul Ali arranged for their transportation to the hospital. But in the cross- examination, he denied to have made a statement to the police officer that Suruk Ali came to the place of occurrence being excited. Suruk was not holding lathi. Having discovered such CRL.A.(J) No.17 of 2012 Page 6 of 15 [7] statement in the previous statement as recorded by the police officer, that part was marked.
[8] PW-5, Aklid Ali is a seizure witness of lathis and he did not say anything more.
PW-6, Abdul Noor testified in the trial and stated that he saw Rajib Ali and Ismail were quarreling. He found Rajib bleeding from his nose and ear. Rajib complained to the teachers namely, Babulal Sinha and Kaushik Bhattacharjee. PW-6 had been working as Cook in the school. At the intervention of the teacher- in-charge, the said quarrel did not aggravate. The teacher-in- charge asked the concerned students to go to the home. The teacher-in-charge informed the matter to the father of Ismail and Rajib. Father of Ismail did not come but Rajib's guardians did come after an hour. They started discussing about the matter. During the discussion, Farid Ali came in the canteen. The school was declared closed after the said incident with an assurance that the said dispute would be decided on next Monday. He did not say anything more.
[9] PW-7, Jahur Miah was the teacher-in-charge in the said school. He stated that he heard about the quarrel between two students namely Rajib and Ismail. Both of them were injured. Their wearing apparels were blood-soaked. He informed the guardians. Father of Ismail refused to come but Rajib's father came with one Abdul Malik. When they were discussing on the CRL.A.(J) No.17 of 2012 Page 7 of 15 [8] dispute, Farid Ali another student came inside. He found Farid Ali's shirt was torn. Rajib's father assured of giving him a new shirt. After the schools break at about 3.15 pm., there was hue and cry on the southern side of the school, then he told the canteen staffs to close the windows and inform Irani Outpost over telephone. He did not say anything of relevance.
Another teacher namely, Subrata Sarkar was examined as PW-8. He corroborated by stating that he found Rajib and Ismail with wounds. He arranged for their first aid. After sometimes, Farid Ali came and informed them that father of Rajib Ali assaulted him without any cause. At our intervention, for the time being, the dispute was settled. After sometimes they heard hue and cry behind the western side the school. [10] PW-9, Sri Nibash Ranjan Debroy and PW-10, Sri Babulal Sinha narrated the incident in the similar manner as narrated by PW-8.
[11] PW-11, Akkas Ali, a teacher of the school informed the police about the incident at about 1 pm. He did not refer to the subsequent event which had taken place at about 3.15 pm. Farid Ali, PW-13 one of the injured witnesses who was a student of that school has testified and stated that at about 1 pm. Mujib Ali called him from the class and took him towards the gate. He asked me why he had beaten his brother. He was with CRL.A.(J) No.17 of 2012 Page 8 of 15 [9] his brother Golab Ali, Samsul Islam. One Ajijur Rahman slapped him and torn his shirt. He came back to the school and informed the incident to the teacher-in-charge of Irani High School. The teacher-in-charge took him to the canteen where he found Abdul Khaleque, father of Mujib. Abdul Khaleque assured him to mitigate the dispute. On that day there was school break on 2.15 pm. When he was going out with Abdul Khaleque, Abdul Khaleque abused him. In that time, his brother, Firuj Ail came, then Abdul Khaleque directed to assault Firuj. Abdul Khaleque also assaulted him. Samsul Islam took out a lathi from the auto-rickshaw and hit on his brother, Firuj Ali. Firuj tried to get up but again the assailants hit on his leg. In the meantime, his another brother Suruk Ali came there. Saiful Islam hit Suruk on head by a wooden lathi. Suruk tried to escape but Ajijur caught him. Samsul Islam, Saiful, Golab Ali, Mujib Ali and Abdul Khaleque began to assault them at a time. Saiful also by taking out his shoes hit his brother. He cried for help but there was none at that point of time. The assailants tried to escape by auto-rickshaw when Fakrul came there and restrained them. From there, he and his brothers, Firuj and Suruk were taken to RGM hospital. His mother had also boarded in that auto-rickshaw. Ajijur Rahaman was the driver of the said auto-rickshaw. Suruk Ali was referred to the GBP hospital and on 19.03.2011, his brother, Suruk succumbed to the injuries in the GBP hospital. In the cross-examination, the substratum of his testimony could not be dented. Even though he denied to have CRL.A.(J) No.17 of 2012 Page 9 of 15 [10] made the statement to the police officer that Suruk had also appeared with a lathi on his hand, but such statement having found in the previous statement recorded under Section 161 of the Cr.P.C., excerpt was admitted and marked. [12] PW-14, Firuj Ali has corroborated the latter part of the narrative of PW-12 and narrated what he had heard from PW-
12. He has stated as under:
"In the school gate my elder brother Farid Ali to cry. I asked him who kill you. He said that Chaiful, Samsul assaulted him and then Mujib Ali came from auto, Mujib slept (sic.) me. Chaiful Islam hit on my waist by a lathi took out from auto. I tried to go towards school, Samsul hit me on my leg by lathi and I fell down. Ajijur called that another Suruk has come, then Chaiful Islam hit on his head by lathi. Brother Suruk tried to flee. Ajijur caught him and Chaiful again hit him by lathi and Suruk fell down and all Mujib Ali, Chaiful, Gulab Ali, Abdul Khalik, Samsul and Ajijur Rahman all six assaulted him. We cry and called the teacher, but teacher did not come. Farid and myself was crying. After assaulting us the assailants tried to escape by auto, Fakrul came and resisted, then accd. left the place. By that auto we three brothers were taken to hospital. Ajijur Rahaman carried us and our mother with us, firstly visited Irani OP and then Kailashahar Hospital. Suruk referred to GB hospital, but next day he succumbed to injuries."
In the cross examination, the defence did not succeed to bring out any contradiction of significance or any omission of serious nature.
[13] PW-15, Mst. Jarida Bibi is the mother. She has narrated what she had heard about the incident from one Akkas Ali [PW-11]. But the latter part of the occurrence, she testified in the trial by stating that she saw Ajijur to catch hold of his son, Suruk Ali and the other accused persons to assault Suruk Ali. She CRL.A.(J) No.17 of 2012 Page 10 of 15 [11] has stated that the other accused persons were not known to her but she identified them in the dock. She had stated that she boarded the auto rickshaw by which her 3(three) injured sons were brought to Irani P.S and then to the hospital. She has stated that Suruk succumbed to the injuries on the next date. She admitted in the cross-examination that she did not state to the police officer that she heard about the occurrence from PW-11. She even admitted that she did not state to the police officer that Farid was assaulted by the school boys or Suruk was lying on the ground with bleeding injuries.
[14] PW-16, Fakrul Islam has stated that on 18.03.2011, Friday at about 2-2.30 pm. he heard the hue and cry from the premise of Irani school when he rushed there, he found Saiful Islam, Samsul Islam, Golab Ali and Mujib Ali beating Suruk Ali by lathi. When they were trying to escape by an auto-rickshaw parked by the side of the school, he restrained them and asked them to arrange the treatment of the injured first. Then those persons left the place. At his request, Ajijur, driver of the auto- rickshaw transported Suruk Ali, Farid Ali and Firuj to the hospital with their mother. On the next day, he heard that Suruk succumbed to the injuries. He has admitted that Farid, Suruk and Firuj are his cousin brothers. But he has denied that he made a statement to the police officer that Suruk was also wielding a CRL.A.(J) No.17 of 2012 Page 11 of 15 [12] lathi. But such statement having found in the previous statement was excerpted and marked.
[15] Ismail Ali [PW-17], Koushik Ranjan Bhattacharjee [PW-18], Uttam Kumar Bhowmik [PW-19], Sumen Ali [PW-20] and Kayum Ali [PW-21] have generally stated of the disturbing occurrence and the quarrel between the two students, but did not identify any of the assailants of such subsequent occurrence when Suruk Ali did receive critical injuries.
[16] PW-22, Dr. Tushar Kanti Chowdhury is the medical officer who treated Farid Ali and Firuj Ali on 18.03.2011. Farid Ali was not having any external injury. But he did not speak about Suruk Ali.
[17] PW-23, Md. Achaddar Ali is the scribe who wrote the FIR at the dictation of Ashik Ali.
PW-24, Dr. Jayanta Shankar Chakraborty is the Tutor in the Department of Forensic Medicine and Toxicology of AGMC and GBP Hospital, Agartala. He has testified in the trial and stated as under:
"On that day I conducted PM Examination one deceased Surat Ali in c/w GB OP GD E No.519 dtd 20.3.11. The dead body was brought and identified by constable No.1846 Suras Laskar of GB OP. While conducting PM examination I found 4 nos. external injuries, these are ante mortem in nature, caused by some hard and blunt object and injury No.1 was surgically made, age of injury was one day to two days old at the time of death. On completion of the PM examination I opined that cause of death was coma, due to head injury, time since death was 8 hours to 12 hours at the time of examination. It was homicidal. This is the PM report exhibited and CRL.A.(J) No.17 of 2012 Page 12 of 15 [13] marked Exbt.P.3 (as a whole). Injury was caused by lathi. This injury may be caused by such lathi."
[18] PW-25, Sri Jitendra Nama, the investigating officer has stated in the trial how he conducted the investigation, prepared the site map and caused seizure of lathi from the graveyard, nearby the place of occurrence. He could not apprehend the appellants as they were on run. He went on for recording the statement of the witnesses. Thereafter, he filed the chargesheet on compiling the inquest report and injury report and post mortem examination report.
[19] Mr. P.K. Biswas, learned senior counsel appearing for the appellants having referred to the testimonies, particularly to the testimonies of PWs-6,12,13,14 & 16 has stated that the prosecution has perhaps made out their case of commission of offence of causing grievious hurt voluntarily, punishable under Section 325 of the IPC. According to him, blow was given by the appellants when there was a free fight and it may not be correlated to the internal injuries and hence, the conviction as entered under Section 304-Part-II is required to be altered to one under Section 325 of the IPC as was done by the apex court in Mahindar Singh vs. Delhi Administration, reported in 1985 Cr. L.J. 1903.
[20] From the other side, Mr. R.C. Debnath, learned Addl. P.P. appearing for the state has robustly opposed such interpretation, as provided by Mr. Biswas, learned senior counsel CRL.A.(J) No.17 of 2012 Page 13 of 15 [14] appearing for the appellants, while defending the impugned judgment of conviction. Having referred to a decision of the apex court in Patel Rasiklal Becharbhai and others vs. State of Gujarat, reported in 1992 Cr. L.J. 2334, Mr. Debnath, learned Addl. P.P. has stated that even if the blow which was fatal could not be said to be intended to cause the said injury, it should be the act which has been done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. It cannot be denied that the homicide that occurred was the result of the assault by the lathi which was carried by the appellants. The appellants as it transpires from the medical reports caused not only one but four external injuries by 'hard and blunt object'. One of the injuries was on the skull, which according to PW-24, is the cause of coma which resulted in death.
[21] Thus, we are of the view that it cannot be held that though there was no intention to murder but the act would definitely come under Section 304-Part-II read with Section 34 of the IPC. For causing hurt to Firuj Ali, Farid Ali and Suruk Ali, the appellants are also liable to be convicted under Section 323 read with Section 34 of the IPC. We have appreciated the evidence afresh and heard the learned counsel for the parties at length. On such appreciation, we are of the view that the judgment of conviction does not warrant any interference inasmuch as the same has not been visited by any infirmity. But the order of CRL.A.(J) No.17 of 2012 Page 14 of 15 [15] sentence is essentially required to be revisited on considering the nature of the transaction of crime and age of the appellants. In our considered view, when the sentence under Section 323 read with Section 34 of the IPC shall remain unaltered but the sentence under Section 304-Part-II read with section 34 of the IPC is required to be reduced to 2(two) years and accordingly, it is ordered.
[22] We have failed to find out the relevant dates for setting off the period of detention that the appellants have undergone by now but we generally direct to set off the period of detention from the substantive sentence of imprisonment under Section 428 of the Cr.P.C.
[23] In the result, the appeal stands partly allowed. The appellants are directed to surrender in the court of the Sessions Judge, Unakoti Judicial District, Kailashahar within 3(three) weeks from today without fail, else the Sessions Judge shall take all coercive measures to compel them suffer the sentence in terms of this order.
Send down the LCRs forthwith.
JUDGE CHIEF JUSTICE
Sujay
CRL.A.(J) No.17 of 2012 Page 15 of 15