Gauhati High Court
Md. Imdad Ali @ Anish Ali vs The State Of Assam on 29 August, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
Criminal Appeal 58/2008
Md. Imdad Ali
S/O Galjar Ali,
KB Road,
PS. North Lakhimpur,
Dist. Lakhimpur, Assam............................... Appellant
-Vs-
State of Assam.............................. Respondent
BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA Advocate for the Petitioner : None appears.
Advocate for the Respondent : Mr. B Sharma, ld. Additional Public Prosecutor.
Date of hearing & Judgment : 29.08.2017
JUDGMENT AND ORDER (Oral)
This Criminal Appeal is filed, under Section 374 Cr.PC, against the judgment and order dated 3.12.2007, passed by the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur, in Sessions Case No. 105 (NL)/2002, convicting and sentencing the accused appellant to undergo rigorous imprisonment for 2 years and pay a fine of Rs. 2,000, in default, to undergo another 6 months simple imprisonment under Section 304 Part-II IPC.
Page 1 of 7 Crl.A.58/20082) I have heard learned Additional Public Prosecutor for the State Mr. B Sharma. None appears for the accused appellant inspite of repeated calls.
3) I have meticulously examined the judgment of the learned trial court and the evidence in record of the learned trial court. This is an old pending appeal, and therefore, taken up for disposal, after hearing learned Additional Public Prosecutor for the state and on perusal of the entire materials in the record.
4) The case for the prosecution, as unfolded during the evidence, is that, on 2.5.2000, while Md. Jamshed Ali and his wife, Elluma Begum, were returning from the market, accused Md. Imdad Ali, misbehaved with Elluma Begum, and assaulted Md. Jamshed Ali, who was immediately rushed to the hospital where he was declared brought dead.
5) On the basis of the above facts, one Md. Akhtaruddin Ali, lodged an FIR with the North Lakhimpur Police Station, which was registered, vide North Lakhimpur PS Case No. 373/2000, under Section 341/354/427/302 IPC. Thereafter, the police carried out the investigation of the case, visited the place of occurrence, conducted inquest as well as the postmortem of the dead body, recorded statements of 2 witnesses under Section 164 Cr.PC, arrested the accused, sent him to judicial custody, and finally, on completion of the investigation, filed charge-sheet against the accused under Section 304 IPC.
6) On receipt of the case, on being committed by the learned Sub-Divisional Judicial Magistrate, Lakhimpur, the learned Additional Sessions Judge (FTC), commenced the trial of the case. The learned Additional Sessions Judge, framed a formal charge against the accused under Section 341/354/302 IPC, to which the accused pleaded innocence.
7) In this case, the prosecution examined as many as 8 (eight) witnesses. In his statement recorded under Section 313 Cr.PC also, accused is found to have denied the accusations made against him, rather he had taken a plea that the Page 2 of 7 Crl.A.58/2008 deceased and his wife assaulted him, and in the scuffle, the deceased fell down on the ground. On the basis of the charge, the learned trial court of Additional Sessions Judge, Lakhimpur, North Lakhimpur, framed the following issues for determination :
a) Whether the accused on 2.5.2000, wrongfully restrained the deceased and his wife on the road?
b) Whether the accused outraged the modesty of Smti. Elluma Begum?
c) Whether the accused committed murder of Jamshed Ali by assault?
8) In this case, the informant, examined as PW3, is the brother of PW1 (wife of the deceased). He has exhibited the FIR, marked Ext.2. He is found to have stated in his evidence that he heard about the occurrence to the effect that PW1, i.e. his sister was assaulted by the accused, and then, her husband/deceased Jamshed Ali, appeared there, and then, he was also assaulted by the accused.
9) PW1, as stated above, is the wife of the deceased, she is found to have stated in her evidence that, the incident, initially, ensued with her. She is heard saying that she went to collect clothes from the washerman and found that the accused and 2/3 other boys were talking, and she asked them about her son of Anu, to which the accused replied in negative. Then, both of them entered in an argument. The accused abused her and also threatened her not to argue with him, otherwise he would rape her. Then, the PW1 called her husband Jamshed Ali, who had a scuffled with the accused, and the accused gave a blow, with his hand, on his nose causing him fall on the ground. Blood was oozing out from his nose. He returned home and then informed the police about the occurrence.
The police took him, along with PW1, to the police station, and, thereafter, released them after recording their statements. Thereafter, finding that bleeding did not stop, the deceased was taken to the hospital at about 11:00 o'clock, and Page 3 of 7 Crl.A.58/2008 he was declared brought dead there. The PW2, who is an eyewitness to the occurrence, is heard saying that there took place an argument between the accused and the deceased, and a scuffle thereafter, in which the accused did hit on the nose of the deceased with his hand following which the deceased fell down. Blood was oozing out from the nose of the deceased and then he left for his home. In the night, he heard that the deceased died. He was also examined under Section 164 Cr.PC, by the Magistrate, vide Ext.1. PW5 and PW6 were the washermen. They were at the place of occurrence. Supporting the evidence of PW1 and PW2, they are also heard saying that there took place an argument between the accused and the PW1, then the accused and the husband of the PW1 and that the deceased was assaulted with a blow on his nose by the accused, as a result of which, blood was oozing out form his nose. In the night, he heard about the death of the deceased. PW7 witnessed the occurrence. Although he was declared hostile by the prosecution and subjected him to cross-examination, yet on the core issue of giving a blow on the nose of the deceased by the accused remain intact. In his evidence also,
10) The accused, examined himself as DW1, appears to have not denied the occurrence. He has led evidence to the effect that after the occurrence, they went to PW1 to beg apology, and in front of the shop of the washermen, he met PW1 and her husband (deceased), and at the instance of PW1, her deceased husband assaulted the him/DW1, and, to save himself from the blows of the deceased, he gave a blow, with his hand, on the nose of the deceased. He has also admitted that the deceased died, which he termed as an unfortunate incident. It appears from the evidence of all the witnesses, narrated above, that there was argument between the PW1 and the accused, and then, on appearance of the deceased, who is the husband of PW1, at the place of occurrence, the accused assaulted him with a blow on his nose resulting bleeding and ultimate death of the deceased. All the witnesses examined by the prosecution appears to have consistently maintaining that the accused had inflicted a blow on the nose of the deceased resulting ultimate death.
Page 4 of 7 Crl.A.58/200811) PW4 is the doctor, who performed postmortem examination on the dead body of the deceased on 3.5.2000 and found as follows:
a) Dead body was average built.
b) Dead-body was not decomposed, Rigor mortis present in
both upper and lower limbs.
c) The body was having bleeding from the nose. The nose
and frontal part was swollen.
d) Swelling was present with superficial wound in the left
posterior temporal region with haemotoma and clotted blood.
e) Fracture of the nasal bone was seen.
f) Cranium & Spinal Canal : Swelling in the frontal part and in
the nose (upper part). Fracture of the nasal bone.
g) Massive subdural haemorrhage was seen in the frontal part
of left temporal region.
h) Blood vessels ruptured.
i) Fracture : Nasal Bone.
J) The injuries were ante mortem in nature.
The opinion of the PW4 doctor is that the death was caused by shock and haemorrage following head injury. He has exhibited the postmortem examination report as Ext.3.
12) Whatever it may be, it transpires from the totality of the evidence on record that there was an altercation followed by scuffle in which the accused inflicted a blow on the nose of the deceased. Postmortem examination report makes it appear that the injury of the deceased was fracture of the nasal bone and the doctor also found swelling present with posterior temporal region with haemotoma and clotted blood. He also found Massive subdural haemorrhage in the frontal part of left temporal region.
Page 5 of 7 Crl.A.58/200813) In view of the consistent and corroborative evidence of the prosecution witnesses, it is unequivocally found that the accused appellant had given a blow in the nose of the deceased. Such evidence, coupled with the evidence of the doctor, who performed the postmortem examination, leaves no doubt in the mind of the court that the cause of death of the deceased was fatal blow inflicted by the accused appellant to the person of the deceased.
14) Now, the question is as to whether the accused had any intention to cause death of the deceased.
15) The evidence of the prosecution witnesses that the accused gave a blow on the nose of the deceased, DW1/accused stated in his evidence that he only pushed the deceased, following which, he fell down on the ground. But, this is also an admitted position that there took place a quarrel between the accused and the wife of the deceased, and, thereafter, there took place an altercation and then, acts of assault with the deceased. Taking the totality of such versions, this court is of the view that the eyewitness account of the PW3, PW5 and PW6 is reliable so far the inflicting of blows by the accused on the nose of the deceased is concerned.
16) But, the fact remains that there was an altercation and scuffle between the accused and the deceased as well as PW1, i.e. the wife of the deceased, and the blow was inflicted during continuance of the scuffle is not in dispute from the evidence on record.
17) Therefore, it does not appear that the assault inflicted by the accused on the deceased was planned before, and he, in fact, intended to cause death of the deceased. From the evidence on record, it could not be gathered at all that he intended to cause death of the deceased, and therefore, it is a case where there is no intention on the part of the accused to cause death of the deceased. The learned trial court also held that there was no intention on the part of the Page 6 of 7 Crl.A.58/2008 accused appellant to cause death of the deceased, and, therefore, the accused appellant was held guilty under Section 304 Part-II IPC, and on conviction under Section 304 Part-2 IPC, he was sentenced as aforesaid.
18) Considering the facts and circumstances of the case, particularly, the facts situation in which the occurrence took place, I am of the considered view that if the substantive punishment of imprisonment for 2 years is reduced to 6 months, and, if the amount of fine is enhanced from Rs. 2,000/- to Rs. 10,000/- that will serve the ends of justice.
19) Accordingly, the sentence is reduced to rigorous imprisonment for 6 months and the fine amount is enhanced to Rs. 10,000/-, and, in default, to suffer simple imprisonment for 1 ½ months (45 days).
20) This Criminal Appeal is accordingly, partly allowed.
21) Send down the LCR along with the copy of this judgment.
JUDGE Basumatary Page 7 of 7 Crl.A.58/2008