Gauhati High Court
Sahab Uddin Khan vs The State Of Assam on 14 August, 2013
Author: P.K. Saikia
Bench: P.K. Saikia
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH )
CRL. APPEAL NO. 257 OF 2006
Sahab Uddin Khan,
S/o Abdul Matlib Khan,
Resident of Lanag Part-II,
P.S. Lakhipur, Dist - Cachar, Assam.
..... Appellant
-Versus-
The State of Assam
...... Respondent
BEFORE
HON'BLE MR. JUSTICE P.K. SAIKIA
For the appellant : Mr. MH Rajbarbhuiyan
Mr A Mannaf
Mr R Islam
For the Opp. Party : Mr. B. J. Dutta,
Addl. Public Prosecutor, Assam
Date of hearing :14.08.2013
Date of judgment : 14.08.2013
JUDGMENT AND ORDER (ORAL)
This appeal is directed against the judgment dated 26.07.2006 passed by the Learned Sessions Judge Cachar, Silchar in Sessions Case No. 19 of 2000 convicting the appellant Sahab Uddin Khan of offence under Section 304 Part II/324 IPC and sentencing him to rigorous imprisonment for 5 years with fine of Rs.1,000/- in default, to suffer for imprisonment for another 6 months and sentencing him to suffer R.I for six months for under Section 324 IPC.
1. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellant Sahab Uddin Khan, hereinafter referred to as accused person, has preferred this appeal citing several infirmities in the judgment, impugned.
2. The brief facts necessary for disposal of the present appeal is that one Tamij Uddin of village Poilapul gave his cow to one Dhanbir Singh of Kangali Basti within Lakhipur police station to rear on 'Bhagi' basis. However, said cow was found missing from the night of 28.04.1996. The cow was searched but it could not be located. Subsequently, said Dhanbir came to know that the cow was slaughtered by the accused Sahab Uddin and he sold the beef thereof to the public.
3. The Panchayat member Hakim also came to know about the same and called Dhanbir to his village on 14.05.1996. The matter was thereafter reported to Tamij Uddin. He along with him Dhanbir went to the house of Md. Hakim. When they reached Lamina Hotel, Poilapul, accused Saheb Uddin Khan along with Abdul Hekim Khan, Abdul Matib, Abdul Rashid Khan and Ajir Uddin attacked Dhanbir and Tamiji Uddin inflicting serious injuries on their persons. The injured were immediately taken to Laboc Hospital where Dhanbir died on the next day.
4. An FIR to that effect on being lodged with O/C, Lakhipur Police Station, O/C, Lakhipur Police Station received the same, registered a case thereon and ordered the matter to investigated by Police Officer. The Investigating Officer, who was entrusted to investigate the case, arrested the accused persons during the course of investigation, visited the place of occurrence, sent the dead body to Silchar Medial College Hospital for postmortem examination.
5. He also examined witnesses and collected medical report and did other needful and on the completion of the investigation, he submitted the charge sheet under Sections 147, 148, 149, 324, 307, 302 IPC against five accused persons including accused/appellant Sahab Uddin Khan and forwarded them to court to stand trial. The Magistrate before whom the charge sheet was so laid, committed the case to the court of Sessions Judge, Silchar since the offences u/s 307/302 IPC are excusively triable by court of Sessions.
6. On receipt of the case on commitment, and after hearing of the parties, learned Sessions Judge, Cachar, Silchar framed the charges u/s 149, 302/149, 324/149 IPC and the charges, so framed, on being read over an explained to the accused persons, they pleaded not guilty to the charges and claim to be tried. During trial, the prosecution has examined 12 witnesses including informant and Medical Officers. The statements of the accused persons u/s 313 Cr. PC were recorded.
7. On the conclusion of the trail and on hearing arguments, advanced by the parties, while acquitting other accused persons, learned Sessions judge, Silchar, convicted accused Sahab Uddin of offences under Section 324/304 Part-ii IPC and sentenced him to suffer imprisonment as aforesaid. It is that judgment which has been assailed in the present appeal citing alleged infirmities more than one.
8. Opening up the argument on behalf of the accused person, Mr. M. A. Rajborbhuiya, learned counsel for accused appellant, has submitted that the judgment, rendered by the Trial Court is unsustainable in law since the star campaigner from the side of the prosecution is found to be unreliable. In that connection, it has been pointed out that the star campaigner Mr. Tamij Uddin (PW.3) who is also one of the victims of the incident in question has drastically improved his version as the case proceeds from stage to stage.
9. In support of such contention, it has been pointed out that before the police, he has implicated all the accused persons tried in the case aforementioned. However, during trial ,the prosecution confined its allegations only to the accused appellant Sahab Uddin Khan. This is fatal, according to the learned counsel for the appellants.
10. Further, the incident in question allegedly occurred in public place, which was noticed by so many persons. Unfortunately, those witnesses were not examined and that too without assigning any reasons whatsoever. Quite surprisingly, prosecution confines its case too to those witnesses who were seriously partisan to the prosecution. He, therefore, submits this Court to set aside the Judgment, rendered by trail Court on acquitting the accused of the offence under Section 304 Part II/324 IPC.
11. On responding to the argument so advanced by Ld Counsel for the appellant, Mr. B. J. Dutta, learned Addl. Public Prosecutor, Assam, contends that evidence rendered by the witnesses, more particularly P.W.3, does not suffer from any infirmity whatsoever. Rather, the evidence rendered by them are quite consistent and clear. There is no material on record to disbelieve the evidence of PWs and therefore, the learned Trail Court came to a conclusion that the prosecution has proved the charge under Section 304 Part-II/324 IPC. He, therefore, urges this Court to dismiss the appeal upholding the judgment of the Trial court.
12. I have considered the rival submissions having regard to the evidence on record and also the judgment challenged in this proceeding. Before I proceed further, I find it necessary to reproduce the evidence of prosecution witnesses and the evidence of the medical officers who conducted the autopsy on the body of the deceased Dhanbir and who examined the victim Md Tajimuddin are taken up first for discussion.
13. One Dr. K. K. Chakraborty, Associate Professor, Silchar Medical College who conducted autopsy on the dead body was examined as P.W.8. According to him, on 15.05.1996 when he was posted at Silchar Medical College and Hospital, he examined dead body of one Dhanabir Singh, aged about 35 years and found the following :-
"Injuries:
1) Stitched wound on the left lateral side of eye measuring 2x ¼ x ¼ cms. Margins regular.
2) Stitched wound on the left arm upper portion and medically with corrugated rubber drainage tube measuring 3x ½ x 1 cm. Margins regular.
3) Stitched wound on the left arm in upper half laterally 6 x ½ x 1 cms. Margins regular.
4) Stitched penetrating wound on the left lateral and upper portion of chest wall measuring 2 ½ x 1cm x chest cavity. Margins regular.
5) On tracing the path it pierced the pleura, entered the upper lobe making through and through wounds in lung 1 ½ x 1 cm and then cut the pericardium and entered the left ventricle of heart making an wound of 1 x ¼ cm x cavity of heart. Margins regular.
6) Stitched wound on the left lateral side of abdominal wall 2 ½ x ¼ x ¼ cms. Margins regular.
7) Stitched wound on the left forearm posteriorly 3 cm below the elbow joint 7 x 2 cm x bone deep with cut in bone . Margins regular.
8) Cut injury upward portion of the occipital area of scalp in middle 5 ½ 1 cm x scalp deep with cut in bone.
All the injuries were fresh and antemortem and casusd by sharp weapons. The pleaural cavity contained about 2 ½ litres of liquid and clotted blood.
Opinion:
The death was due to shock and haemorrhage as a result of ante mortem injury to the heart and lung caused by sharp weapon, homicidal in nature. Time passed since death was 12 to 24 hours approximately."
14. Dr. G. Ekka, who examined Md. Tamij Uddin at Laboc Tea Estate Hospital on 14.05.1996, was examined as P.W. 12. His evidences are as follows: -
"1) Sharp cut wound over the left scapular region. Bone depth.
2) Sharp cut wound over the right 3 rd intra-costal space penetrating in the muscles.
Injuries were fresh.
The injured was admitted in the hospital on police requisition of Lakhipur P.S. on 14.05.1996 at 7.20 p.m. I worked with Dr. Patnayak and I know his handwriting and signature.
Ext. 4 is the injury report of Dr. Patnayak written in the Injury Register of hospital and Ext. 4 (1) is his signature."
15 P.W.3 Tamij Uddin, in his deposition stated that he gave a cow to deceased Dhanbir to rear it on "Bhagi" basis. The aforesaid cow had gone missing few days before the incident in question and the deceased reported it to PW 3. Thereafter, he along with the deceased went to the house of Hekim, since the later called the deceased to discuss the matter pertaining to the missing cow. On their way to Poilapul village, they met accused Sahab Uddin Khan.
16. On seeing them, the accused charged both of them contending they made a false complaint against him. The P.W.3 denied making any false allegation against the accused person. However, not being satisfied with such denial, accused Sahab Uddin attacked him with a dagger and inflicted wounds on his (P.W. 3) back, chest and other parts of the body.
17. Accused Sahab Uddin then turned towards Dhanabir. Dhanabir then started running away from such place and the accused too gave him a hot chase, overtook and attacked him with the arms in his hand. Being so attacked, Dhanabir fell down on the ground and lost his consciousness. Dhanbir and P.W. 3 were taken to Laboc Tea Estate Hospital by his brother. The PW-3 later regained his sense at hospital. Meanwhile, he came to know about the death of Dhanabir. P.W. 3 specifically stated that none except the accused Sahab Uddin assaulted them. In his cross-examination.
18. P.W. 1, Moni Mohan Singh is the brother of the deceased. He is not an eye witness to the incident in question and came to know about the same when he went to Laboc hospital and found his brother Dhanabir and Tamij Uddin in injured conditions. According to him, Dhanabir died in the hospital the following day.
19. P.W. 5, Budhu Mia is the brother of Tamij Uddin. According to him, on hearing about the alleged incident, he came to the place of occurrence and found his brother Tamij Uddin and Dhanbir lying injured at the place of occurrence. He took both of them to the Laboc hospital. While his brother recovered from injury, Dhanabir died the next day. P.W.4, Kamla Bibi, wife of Turpan Ali, did not support the case for which she was declared hostile by the prosecution.
20. P.W.6 is a witness to the seizure of dagger. According to him, police recovered a dagger from the house of Sahab Uddin, which it seized on the strength of seizure list Exhibit-2. Since he too did not support the prosecution case in a way expected of him, he was also declared hostile. P.W. 7 is also a not an eye witness to the incident. He is found saying that he was told that accused Sahab Uddin assaulted Tamij Uddin and Dhanabir with a knife like dagger.
21. P.W.10, Sri Jahar Bora is the S.I. of police and the I.O. of the case. According to him, on 14.05.1996, he was posted at Lakhipur Police Station. On that day, he received telephonic information to the effect that an incident occurred in front of Laboc hospital. Receiving that information, he made necessary G.D. entry , rushed to such place and found that the injured were already removed to the hospital for treatment by local people.
22. He, thereafter, prepared a sketch map of the place of occurrence which he proved as Ext.4. On 15.05.1996, accused Sahab Uddin surrendered at Lakhipur Police Station and also produced the weapon of offence before him which he seized on the strength of seizure list Ext.2. During the course of investigation, he recorded the statements of witnesses, did other needful and on the conclusion, he submitted the charge sheet against the accused person.
23. On perusal of the evidence on record, I have found that the is no quarrel over the fact that the deceased died on 15.05.1996, that he died for sustaining wounds which were ante-mortem in nature and that his death was homicidal one . Again, there is also evidence to show that P.W.3 Tamij Uddin too received wounds caused by sharp weapon which were fresh in nature.
24. Now, we need to know who caused the death of Dhanabir or who inflicted the injuries on the body of P.W.3 on 14.05.1996. On perusal of the statement of the PWs, particularly of P.W.1, it appears that on the fateful day the deceased went to the place of the accused person and got involved in a quarrel with the accused persons. The evidence of P.W.3 further reveals that such incident soon turned violent and accused/ appellant inflicted several wounds on the body of the deceased with sharp weapon.
25. The accused also attacked the PW 3 with dagger like weapon and inflicted wounds on him. The statements, made in the FIR and the evidence rendered by the witnesses, more particularly P.W. 3 makes such position more than clear. The evidence of PW 1, PW5, PW6 and PW10 too lend necessary support to the claim, so made by the PW3. I have found nothing on record to disbelieve such claim made by the PWs, PW3 in particular.
26. Though it has been alleged that PW 3 has made drastic change in his version during the course of trial, that some very witnesses, who were present at the place of occurrence, were not examined by the prosecution, and that the case in hand was maliciously initiated for some previous disputes between the parties thereto, I am not inclined to accept such claims since the materials on record did not support such a contention.
27. On considering the matter in its entirety, I am of the opinion that the deceased died due to wounds inflicted by none else but by accused Sahab Uddin at the place of occurrence on 14.05.1996. I have also found that the accused also attacked and injured the P.W.3 with a dagger like weapon on the same day.
28. In view of above, I find no reason to interfere with the conviction of the accused person recorded under Section 304 Part-II/324 IPC. The learned Trail Court has inflicted adequate punishment on the accused/ appellant on each count. The judgment of the learned Trial Court is, therefore, upheld.
29. Consequently, the appeal is dismissed.
30. Let a copy of this judgment be sent down to the learned Trial court immediately.
JUDGE sumita