Calcutta High Court (Appellete Side)
2)Sayera Bewa @ Saira Bewa vs The State on 8 July, 2010
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Appellate / Revisional /Criminal Jurisdiction
Present :
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
CRA NO. 172 OF 2006
With
CRAN NO. 422 of 2009
1) Md. Muklesur Rahaman ((In Jail)
2)Sayera Bewa @ Saira Bewa ..... Appellants
Vs
The State ....Respondent
For the Appellant : Mr. P.S. Bhattacharya
Mr. Ranjit Sanyal
Mrs. Sukla Das Chandra
For the Respondent : Mr. Sushil Kumar Mahato
Mrs Shireen Sultana
Heard on : 22.06.2010
Judgment on : 08.07.2010
RAGHUNATH RAY, J. :
This Criminal Appeal is directed against the judgement and order dated 17.02.2006 and 18.02.2006 passed by the learned Additional Sessions Judge, Fast Track Court Lalbag Murshidabad in Sessions Trial No. 1 of April 2005. By the said judgment and order the appellant Md. Muklesur Rahaman (in short A1) was held guilty of the charge under sections 326 and 304 IPC and was accordingly convicted thereunder. The co-appellant Saira Bewa (in short A2) 2 was, however, found guilty of the charge under sections 326/114 and 304/114 IPC. After hearing both the convict appellants, the ld trial Judge sentenced A1 to rigorous imprisonment for life for commission of an offence under section 304 IPC. while, his mother A2 was sentenced to suffer R.I. for seven years for commission of an offence under sections 304/114 IPC. However, no separate sentence was awarded on A1 and A2 for the offences under sections 326 & 326/114 IPC respectively.
2. Factual matrix of the prosecution case as unfolded in the FIR lodged by Amirul Islam, (PW1), the younger brother of the deceased may be capsulised as under ;-
On 16th April, 2004 (Friday) at about 5 PM / 5.30 PM while Md. Sajahan Mia aged 48 years was returning from a tea stall of Azaruddin of the village, he was chased by A1 and was over-powered in front of his house. The victim was assaulted on his head with an axe provided by A2, the mother of the assailant. The victim sustained head injuries and collapsed on the ground. The injured was immediately taken to Krishnapur Gramin Hospital wherefrom he was transferred to Berhampur General Hospital since his physical condition was precarious.
3. On the basis of the said FIR lodged on the following morning, Lalgola PS. Case No. 62/2002 dated 17.04.04. under section 326 IPC was registered for investigation against (i) A1, (ii) A2, (iii) Nurul Islam & (iv) Illius. Since the victim succumbed to injuries on 18.04.04 in the afternoon, sections 304 IPC was added and the said PS Case was endorsed to S.I. Jyotirmay 3 Bagchi for investigation. In course of investigation the I.O. examined available witnesses, collected PM Examination Report as also records pertaining to Berhampur UD Case No. 154/04 dated 19.04.04. On completion of investigation the I.O. submitted charge-sheet under sections 326/304 IPC against both the appellants, while the rest two accused were discharged as per prayer of the I.O. Subsequently, the case was committed to the court of sessions by the then ld. SDJM Lalbag, vide order dated 25.08.04. After hearing both sides and considering the materials on record both the appellants were charged under sections 326/34 and 304/34 IPC by the ld trial Judge vide order date 27.09.04. Charges so framed were read over and explained to both the appellants. However, both of them pleaded not guilty and claimed to be tried. Accordingly, both the appellants were put on trial.
4. On consideration of evidence adduced by 12 prosecution witnesses including several eye-witnesses and other relevant documents and materials on record, ld. trial court found both the appellants guilty and recorded an order of conviction and sentence as indicated earlier.
5. Feeling aggrieved, both the appellants have preferred this appeal challenging the judgement and order of conviction and sentence impugned.
6. In support of this appeal Mr. Bhattacharyya has taken us through the entire oral evidence adduced by PWs and has argued that most of the eye- witnesses are close relation of the victim and as such much reliance need not be placed on their testimony especially in the context of wide 4 discrepancies so pointed out by him, in the narration of material facts in the FIR vis-à-vis ocular evidence on record. Even Amirul Islam (PW1), the author of the FIR deliberately suppressed the material fact in the FIR that the quarrel between the deceased and the appellant A1 ensued over the issue of dashing the victim with a bi-cycle. Such a serious omission of a material fact by the younger brother of the deceased coupled with other surrounding circumstances is sufficient to evoke suspicion in the mind of the court about the genuineness of prosecution story. According to him, A1 had no intention to kill the victim and whatever happened was an outcome of an altercation between the two and such an unfortunate incident was caused by A1 on the spur of moment. It is vehemently argued by him that there is no iota of evidence to indicate that there was any premeditation prior to commission of the offences as alleged.
7. After a close analysis of evidence and circumstances on record the ld.
counsel for the appellants has, however, not seriously challenged the order of conviction under section 304 IPC. But his main grievance is that the sentence awarded by the ld. trial court to A1 has affected proportionality. In his estimation, life sentence imposed upon A1 does not commensurate with the nature of offence complained of against him. According to him, A1 ought to have been convicted under part II of section 304 IPC which prescribes maximum punishment of 10 years since corroborative evidence on record, if dissected with circumspection, would tend to show that the act done by A1 was with the knowledge that it is likely to cause death but 5 without any intention to cause death or to cause such bodily injury as is likely to cause death. Therefore, it is forcefully argued by him that this is a proper case where this court of appeal should interfere to reduce the sentence of life imprisonment and to award an appropriate sentence taking into consideration the fact that A1 had no intention to kill the victim.
8. In this context he has also relied upon a ruling of the Hon'ble Apex court reported in 2009(3) AICLR 274,[Bikram Dorjee, Appellant, v. State of West Bengal (SC), Respondent]. It is submitted by him that in a similar situation the Hon'ble Apex court awarded 10 years custodial sentence reversing life sentence since the offence was relatable to section 304 Part II IPC. He has further referred to another ruling of the Division Bench of this High Court reported in (2009)2 C Cr. LR (Cal) 456 [Nikhil Ghosh, Appellant v. The State of West Bengal, Respondent]. In this case also the Division Bench was of the opinion that the case squarely comes within the purview of Section 304 Part- II of the IPC and the Division Bench maintained the conviction recorded by the ld. trial judge with the modification of sentence that the appellant would suffer Rigorous Imprisonment for 10 years and pay fine as directed by the learned trial court.
9. In such a fact situation, the learned counsel urges this court to take a lenient view and to modify the substantive sentence of life imprisonment imposed by the learned court below by awarding lesser sentence which would conform to the sentencing policy formulated by the Hon'ble Apex Court in different judicial pronouncements.
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10. Per contra it is argued by Mr. Mahato, ld. counsel for the state that on marshalling of evidence and circumstances on record, it would be obvious that there are ingredients of an offence under sections 302/34 IPC. He refers to the serious nature of injuries inflicted on the vital part of the deceased i.e. on his head by the sharp edge of a deadly weapon like axe and such conduct of A1 leaves no room to doubt that the assailants had intention to kill the victim. Such intention of causing death may also be inferred from the factual situation that there was a bitter relationship between the victim's family and the assailants' family over matrimonial dispute. In this context he has sought to rely upon corroborative evidence of the wife and in-laws of A1 in this regard. Mr. Mahato concludes his argument by asserting that both the appellants ought to have been charged and convicted under section 302/34 IPC.
11. Before proceeding to evaluate both ocular and medical evidence on record in its proper perspective in the light of rival submissions, we feel it necessary to note that pursuant to a charge-sheet under sections 326/304 IPC submitted by PW 12 Jyotirmay Bagchi I.O. the case was committed to the sessions and after its commitment, the convict appellants were placed before the ld. trial court to answer following charge;-
"Firstly, that on 16.04.2004, at about 5-30 PM at village Ramchandrapur, under PS Lalgola, the two of you, in furtherance of the common intention of you all, voluntarily caused grievous hurt by dangerous weapon, i.e. an axe, to Sajahan Mia, and thereby 7 committed an offence punishable under sections 326/34 IPC, and within the cognizance of the Court of Session. ..........
Secondly, that on the same day, and at the same time and place, you all, in furtherance of the common intention of you all, voluntarily caused grievous hurt by dangerous weapon, i.e., an axe, to Sajahan Mia, with the intention of causing such bodily injury, as was likely to cause his death, and as a result of which he had to be hospitalised initially at Krishnapur Rural Hospital, from where he was shifted to New General Hospital, Berhampore, and where he died of the said injury on 18.04.2004, and that you thereby caused such death of Sajahan Mia, and thereby committed an offence of culpable homicide, not amounting to murder, punishable under sections 304/34 IPC, and within the cognizance of the Court of Session."
12. But, strangely enough; as already indicated earlier A1 was convicted under section 326/304 IPC simplicitor while A2 was convicted under section 326/114 & 304/114 IPC. Such alteration of charge is however, not preceded by any discussion in the body of judgement impugned. No reason has also been assigned justifying alteration of charge after conclusion of trial.
13. True, the provisions of the code, 1973 enable the court to frame proper charges for offences disclosed in the allegations and in proper cases even alter it at any stage of the trial in accordance with the evidence provided no prejudice is caused to the accused. It is also equally important to bear in mind that in a criminal trial the charge is the foundation of the accusation 8 and every care must be taken to see that it is not only properly framed but evidence is only tendered with respect to the matters put in the charge and not the other matters.
14. In the present case without a definite charge of abetment being framed against A2 and thereby not affording her an opportunity to meet, she has been convicted for abetment under section 326/304 IPC read with Section 114 IPC instead of section 326/34 & 304/34 IPC. Similarly, although A1 was charged under identical sections, he is convicted under section 326/304 IPC simplicitor without any rhyme or reason. Therefore, it is to be adjudicated whether such conviction is legally warranted, even though there is no supportive evidence to establish the charge of abetment in case of A2. We are also to scrutinize whether the prosecution has led consistent and cogent evidence to prove the charge under section 326/34 and 304/34 IPC framed against both the appellants after giving them sufficient scope to put in their best endeavour to meet the charge brought against them.
15. Amirul Islam (PW 1), the de-facto complainant is categorical in his evidence that he saw accused Saira Bewa, the mother of accused Md. Muklesur Rahaman to hand over an axe to his son who hit his brother Md. Sajahan Mia on his head with the said axe. He further deposes that Sajahan fell down on the ground and Muklesur fled away carrying the axe with him. Saira Bewa also fled away from the scene. The contents of FIR thus stand 9 corroborated in his testimony before the Court. He has also forcefully denied the defence suggestion that accused persons were roped in on false allegations by him and his relation in this case.
Golam Mortaja (PW 2) has proved the FIR (Ext. 1) which was scribed by him as per instruction of PW I.
16. Matiur Rahaman (PW 3), Samandhi (wife's brother), another eye-witness deposes that in response to a hue and cry when he had been to the P.O., he saw accused Saira Bewa to hand over an axe to her son Md. Muklesur Rahaman who dealt a blow on the head of Sajahan causing him to fall down on the ground. It is also available from his testimony that both the accused persons ran away beyond their house while Md. Muklesur Rahaman carried the axe with him. Both the eye-witnesses PWs 1 & 3 were subjected to rigorous cross-examination but nothing transpires to impeach their credibility.
17. Akbar Ali Mia (PW 4), a post occurrence witness, the nephew of the deceased gives out that on hearing of Hallah he ran towards the PO and saw his uncle Sajahan Mia with bleeding injuries on his head and he was taken to Krishnapur Gramin Hospital for his medical treatment and therefrom he was shifted to Berhampur General Hospital. His testimony also remains un-shaken during his cross-examination .
18. Mortaza Ali, the father - in - law of A1 also testifies that on 16.04.04 in the evening at village Ramchandrapur, Muklesur Rahaman hit Sajahan on his head with an iron axe which was furnished to him by his mother Saira 10 Bewa. Such assault took place in front of the house of A1. It is elicited from his cross-examination that shortly before the incident complained of when Sajahan was going to a tea shop to have a cup of tea Muklesur dashed him with a bi-cycle in front of the house of Illius.
19. Jannatan Bibi (PW 6), the wife of A1 deposes that on 3rd Baishakh last at about 5-5.30 PM she was inside the house along with his mother-in-law Saira Bewa while Sajahan and Muklesur were outside the house. She heard her husband Muklesur to ask for an axe from her mother-in-law and when Saira Bewa handed over an axe to him Muklesur, A1 hit Sajahan on his head with the said axe. Sajahan fell down on the ground after sustaining bleeding injuries. It is also available from the cross-examination of this witness that while Sajahan was proceeding towards a tea stall for a cup of tea, Muklesur, A1 dashed him with his bi-cycle. Both the father and daughter namely PWs 5 & 6 respectively have very successfully stood the test of cross-examination and their corroborative testimony is credit worthy.
20. Asraf Sk. (PW 7) also corroborates other eye-witnesses by deposing to the effect that on 16.04.04 while he was coming from the tea stall of Azaruddin Sajahan, the deceased was going to the tea stall of Azaruddin and he saw accused Muklesur to dash Sajahan with his bi-cycle in front of the house of Illius and Muklesur also hit a blow on the eye of the Sajahan. He pacified them and, thereafter, proceeding a short distance he heard an alarm and returning to the scene he saw Sajahan lying on the ground with 11 bleeding injuries. He further testifies that Amirul Islam and some other persons present there told him that Muklesur hit Sajahan with an axe on the later's head.
21. Yeakub Ali (PW 9), the son of the deceased is also a post-occurrence witness and in response to a hue and cry when he reached the P.O. he found that his father was lying on the ground with bleeding injuries on his head.
22. Now adverting to medical evidence we find that the victim sustained injuries because of assault on his head with an axe. Dr. Partha Saha (PW
8), Medical Officer who was attached to Krishnapur Gramin Hospital at the material point of time examined Sajahan Mia and found on him "a deep incised wound over the scalp. 3" x 1" over frontal and parietal bone, right side and peri-orbital oedema of the right eye. His chest was clear. S 1 and S2 i.e. heart sound was audible. No murmur i.e. abnormal heat sound was detected. No neurological deficit detected at that time." The patient was referred to N.G. Hospital Berhampore after initial treatment for final opinion to be given by the attending surgeon. The original injury report was proved by PW 8 and was marked as Exhibit 2.
Pausing for a moment it may be pointed out that only one deep incised wound was caused over scalp by a blow of the axe while peri-orbital oedema of the right eye was caused since A1 hit a blow on the eye of the victim immediately after the dashing incident which occurred prior to an assault by an axe on the head of the victim.
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23. Dr. Tapas Kumar Ghosh (PW 11), who conducted the Post -Mortem Examination of the deceased found on the victim "one lacerated injury about 3" in diameter, elliptical, near circular in shape, with evidence of bleeding, just over right side of frontal hair bearing scalp and fracture on skull bone. The fracture was 4" in length, and 1"
in width with lacerated brain parenchyma, coming out through the wound. No other external injury was detected."
The Autopsy Surgeon, however, opined that the death was 'due to above mentioned grievous injury with fracture of skull bone and shock, which is homicidal and ante-mortem in nature.' He has proved the PM Examination Report (Exhibit - 5).
24. Jyotirmay Bagchi (PW 12), I.O. of this case deposes that in course of investigation he recorded statements of witnesses under section 161 Cr. P.C. and subsequently submitted a prayer for adding the section 304 IPC before the ld. Court on expiry of the victim Sajahan Mia. He also collected the Post Mortem Examination Report of the deceased from N.G. Hospital Berhampore as also supplementary Case Diary from Berhampore Police Station. On completion of investigation he submitted charge - sheet against both the appellants.
25. On evaluation of evidence on record we are of the view that the evidence of eye-witnesses inspires confidence and all of them have, in fact, deposed about the unfortunate incident in its entirety. The other witnesses who even came 13 immediately after the incident in response to a hue and cry have also testified that they found the victim lying on the ground with head injuries. They also saw A1 to carry axe with him while fleeing away from the P.O. and A2 was also found to follow her son. True, there is no indication in the FIR itself that prior to the incident of assault there was an episode of dashing the victim by A1 with his bi-cycle. But such minor omission in the FIR lodged by the brother of the deceased is not fatal for the simple reason that the FIR maker may not have any knowledge about such occurrence of dashing at the time of lodgement of FIR since such occurrence took place much earlier before the actual incident of assault. More so, whenever in his evidence it is frankly admitted by PW I that he heard about such episode of dashing. Be that as it may, the fact remains that some of the witnesses either in their cross-examination or examination - in
- chief have corroborated each other while testifying that the victim was dashed by A1's bi-cycle shortly before infliction of injuries on the victim's head. We have, therefore, no doubt in our mind that the incident of assault on the head of the deceased was preceded by dashing episode and also hitting incident on the eye of the victim followed by an altercation between the two which ultimately drove the assailant to hit the victim on his head with an axe supplied by A2.
26. It is, therefore, quite evident that there is plurality of ocular account and atleast four eye-witnesses have furnished such ocular account. In addition to such oral evidence there is medical evidence adduced through PWs 9 and 11 14 coupled with the injury report (Exts. 2) and the PM Examination Report (Exts.
5). By juxtaposing ocular testimony and medical evidence we are of the considered view that ocular account of all the witnesses is in accord with medical evidence. In this connection it is pertinent to mention that most of the witnesses live in proximity of the place of the incident and as such they are the natural witnesses of the incident. Importantly, even though their evidence was subjected to close scrutiny with great care and caution, they have passed the test of reliability and truthfulness. In fact, minor deficiencies and discrepancies on trivial matters in the evidence of natural witnesses do not affect the credibility of the prosecution version. The close relatives of the deceased and accused are very natural witnesses and they cannot be regarded as an interested witnesses. The relationship itself is no ground to reject the testimony of prosecution witnesses. That apart, a close relation will be the last person to implicate the innocent person and to spare the real culprits. It is well settled position of law that when the relation witnesses' testimony is reliable there is no bar in basing the conviction on the same. In our considered view, the evidence of relative eye-witnesses is worthy of credence since, as indicated earlier, the same have been found reliable in the facts and circumstances of the present case. Merely, because the eye-witnesses were close relatives of the assailant and the deceased their evidence cannot be discarded. Factum of relationship per se is no ground for rejection. More so, where the testimony of eye-witnesses who are natural witnesses in the present case does not suffer from any inherent infirmities or intrinsic contradictions. Their testimony cannot 15 be discarded merely because they are related to the deceased. Hence, we feel inclined to place implicit trust on their corroborative testimony. We are, therefore, of the definite opinion that the involvement of both the appellants in the incident has been established and firmly established beyond reasonable doubt.
27. In this context, it is pertinent to mention that A2, the mother of A1 supplied a deadly weapon like axe having full knowledge that such sharp edged weapon could be used to cause injuries on the person of the victim. More so, since she hurriedly responded to a call by her son for providing him with an axe, even though she found her son engaged in a hot altercation with the victim. In such a volatile situation she knew it well that such a deadly weapon might be used by the assailant on the spur of moment at least to cause grievous hurt on the person of the victim. Therefore, the intention of both the appellants can be gathered from their respective conduct and such weapon was certainly supplied by A2 in furtherance of their common intention to cause injuries on the person of the victim. It is apt to mention here that divorce between A1 and his wife Jannatan Bibi (PW 6) was effected after the incident of assault. Such being the factual position, it can be safely inferred that on the date of incident there was no malice or ill will between the appellants and the victim. Such inference finds support from the testimony of Jannatan Bibi, the wife of the assailant. It is available therefrom that she was alone in the house of the accused with her mother-in-law at the material point of time when the 16 incident of assault happened outside their house. As a matter of fact, the matrimonial relationship of the couple broke down because of this unfortunate incident which resulted in the death of the uncle-in-law of the assailant.
28. On wholesome appreciation of the entire materials on record it cannot be said that the act of A1 in assaulting Md. Sajahan Mia, would fall under any of the four clauses of section 300 IPC, breach of which is punishable under section 302 IPC but it would only fall within the clause thirdly of section 299 IPC., inasmuch as it can safely be presumed that when A1 assaulted Sajahan Mia on his head he committed an act with the knowledge that it may cause death. In that view of the matter we are unable to accept the ld. State Counsel's argument put forward on that score.
29. In order to decide the issue as to whether the appellants are liable to be convicted under Part I or Part II of section 304 IPC, the circumstances leading to the death of the victim have to be analyzed with abundant care and utmost circumspection. Section 304 IPC provides punishment for culpable homicide not amounting to murder. Under it there are two kinds of punishments applying to two different circumstances :
(1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine.17
(2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine or with both.
30. A bare perusal of the section itself tends to show that section 304 Part I IPC applies to a case when it is proved that the accused had intention to cause such bodily injury as is likely to cause death. The second part thereof is attracted when it is proved that even if the accused had no intention to cause such bodily injuries as is likely to cause death he had the knowledge that the injury was likely to cause death.
31. Against such legal backdrop, while undertaking a critical analysis of evidence on record we do not find any tangible evidence to reach a conclusive finding that A1 & A2 had any intention to cause death of the victim. More so, whenever medical evidence also speaks that there was only one injury on head and the eye-witnesses also corroborated each other by deposing to the effect that a single blow was dealt with on the head of the victim by an axe. If the appellants had any intention to cause death of the victim, the situation would have been otherwise. He could have inflicted several blows with the help of the said axe on the head of the victim to wreck vengeance, if any in order to ensure death of the victim. To be more specific, if really the intention of the assailant was to cause 18 the death of the deceased he could have hit the victim repeatedly inflicting more serious injuries on the person of the victim. But there is only one deep incised wound over the scalp, 3" x 1" over frontal and parietal bone, right side. However, there was peri-orbital oedema of the right eye since earlier A1 hit the victim on his eye. Save and except such incised wound over the scalp no other injuries of such dimension are available from the medical report. Under such circumstances it cannot be said that the appellant had intention to cause the death of the deceased. However A1 had only knowledge that such injuries are likely to cause death. Such being the legal and factual position we are of the definite view that A1 is punishable under Section 304 Part II IPC.
32. In this context reliance can be placed upon a ruling of the Hon'ble Apex Court reported in AIR 1994 Supreme Court 963 = 1994 Cr. L. J. 1213 ( SC ) [Panchaiah and Ors., Appellant v. State of Karnataka, Respondent]. In this case before the Hon'ble Apex Court due to bitter enmity one serious injury was caused on the head of the deceased while other injuries were mere bruishes and abrasions. In such circumstances, conviction of the accused under Section 304 Part II was held proper. It is, therefore, a settled position of law that when there was no intention on the part of the assailant to cause death, although had knowledge that the injury inflicted was likely to cause death, he has to be convicted under Section 304 Part II IPC. The learned trial Court is, therefore, not justified in convicting A1 under Part I of Section 304 IPC in the absence of ingredients of Section 304 Part I IPC. In such view of the matter we are unable to maintain conviction of A1 under Section 304 Part I IPC. 19
33. In our considered view, the ld. trial Judge's leaping to the conclusion that A1's conduct shows that he acted in cold blood and in a calculated manner in causing the death of Sajahan is not acceptable since the same is not backed by materials and circumstances on record. Rather, we feel inclined to opine that the unfortunate death of the victim was caused by A1, on the spur of moment without having any pre-meditation and pre-planning in this regard. Therefore, we find much substance in the submission of the learned counsel for the appellants that materials on record clearly indicate that it was not a pre- meditated action on the part of A1 and A2 who supplied the incriminating axe as per asking of his son instantaneously without considering its pros and cons. Taking such submission made at the Bar together with evidence on record into account, we feel persuaded to hold that the incident of dashing by a bi-cycle and subsequent altercation between the parties prompted A1 to hit the victim on his head with an axe without having any intention to kill him.
34. Turning to the question of alteration of charge it is reiterated that, although the law governing the trial of criminal offences provides for allteration of charges at any stage of the proceeding, such move is not permissible in the absence of sufficient evidence justifying the alteration of charge. Furthermore, charge cannot be altered causing prejudice to the appellants. Considering all these we have no hesitation in opining that the learned trial court has committed an error in not weighing the correctness or sufficiency of evidence in 20 proving the charge under section 326/34 IPC as well as 304/34 IPC framed against both the appellants. It is not open to the ld. trial court to hold A2 guilty on a different count of charge under section 326/34/114 IPC arbitrarily instead of charges framed against them at the initial stage of trial despite overwhelming materials on record to prove the offences for which they were charged and confronted during trial. Accordingly, A1's conviction under section 326/304 IPC simplicitor is also not sustainable on that score.
35.In view of foregoing discussion it can be safely concluded that A2's conviction on the charge of abetment is not maintainable. Rather, the sequence of events would, undoubtedly spell out a common intention of the appellants intention to assault and cause grievous hurt on the person of Sajahan and being prompted with such intention the axe was supplied to A1 by A2. The common intention can develop even during the course of transaction. It is well settled position of law that in order to bring a case under section 34 IPC it is not necessary that there must be a prior conspiracy or premeditation. The common intention can be formed in the course of occurrence. Judging the present case from that yardstick it can easily be inferred that both the appellants had common intention to assault and cause grievous injury on the person of the victim. Therefore, both of them are liable to be convicted under section 326/34 IPC.
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36.However, as already discussed earlier A1 had no intention to commit homicide but had knowledge that bodily injury inflicted on the victim is likely to cause death. In such circumstances A1 alone is liable to be convicted under section 304 Part II IPC since there is no iota of evidence to indicate that his mother A2 had any knowledge that injury inflicted on the deceased is likely to cause death.
37. In the result, the conviction of A1 under sections 326 /304 Part II IPC stands altered and A1 is convicted under sections 326/34 and 304 Part II IPC. He is sentenced to R.I. for four years and to pay a fine of Rs. 3,000/- i/d S. I. for three months for commission of an offence under sections 326/34 IPC. He is further sentenced to 10 years R. I. for commission of an offence under section 304 Part II IPC. Both the sentences shall run concurrently.
38. Conviction under section 304 read with section 114 IPC in respect of A2 and sentence of imprisonment for seven years thereunder are set aside. Her conviction under sections 326/114 IPC, however, stands altered and she is convicted under sections 326/34 IPC and is sentenced to four years R.I. and to pay a fine of Rs. 3000/- i/d S. I. for three months. The entire amount of fine i.e. Rs. 6000/- in total, if realized shall be paid to the legal heirs of Md. Sajahan Mia since deceased as compensation.
39. The appeal is partly allowed to the extent indicated above. 22
40. The learned trial Court is directed to issue a revised jail warrant accordingly.
Saira Bewa, A2 who is on bail is directed to surrender before the ld. trial Court to serve out sentence within three weeks in default whereof the ld. Court below is to take appropriate steps in accordance with law.
Let the LCR together with a copy of this judgement and order be sent down forthwith for necessary compliance.
(Raghunath Ray, J) I Agree (Ashim Kumar Banerjee, J.)