Gauhati High Court
Naudhan Ali And 5 Ors vs The State Of Assam And Anr on 27 January, 2020
Author: S. Hukato Swu
Bench: S. Hukato Swu
Page No.# 1/8
GAHC010138952017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 340/2017
1:NAUDHAN ALI and 5 ORS
S/O LATE ASRUDDIN
2: KALI BEGUM @ RINA BEGUM
D/O LATE ASRUDDIN
3: CHAMPA BEGUM
D/O MD. SAMAD ALI
4: MAMONI BEGUM @ MAJANI BEGUM
D/O LATE ASRUDDIN
5: HABIBAR RAHMAN
S/O MD. SAMAD ALI
APPELLANT NO. 1 TO 5 ARE R/O VILL. KHANDAKARPAR
BHELLA
P.S. and DIST. BARPETA
6: REJINA BEGUM @ MALA
W/O NAZIRUL ALI
R/O VILL. BARIDAPARA KAMARKUCHI
P.S. and DIST. NALBARI
VERSUS
1:THE STATE OF ASSAM and ANR
REPRESENTED BY P.P. ASSAM
2:MD. RAFIT ALI
S/O LATE MIAJAN ALI
R/O VILL. BHELLA
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P.S. and DIST. BARPETA
Advocate for the Petitioner : MR.M H TALUKDAR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE S. HUKATO SWU
JUDGMENT
Date : 27-01-2020
JUDGMENT & ORDER (ORAL)
M.A. Ali, J Heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. A.R. Sikdar, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P., Assam for the respondents.
2. This appeal is directed against the judgment and order dated 16.06.2017 passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 01/2004. By the said judgment, the learned Sessions Judge convicted the appellants under Section 302/34 IPC and sentenced them to imprisonment for life and fine of Rs. 10,000/- each with default stipulation.
3. The prosecution case, as unfolded in the FIR was that when the victim, Abul Ali was cutting branches of a tree near his house, the seven accused persons named in the FIR, assaulted the victim Abul Ali and thereby inflicted injuries. Having learnt about the incident, when the mother of the victim and other members of the family went to rescue him, the accused persons also assaulted the mother of the victim, Mira Begum and Jibu Ali with sharp weapon. The FIR (Ext.2) was lodged by PW-2, father of the victim, on the basis of which, police registered Barpeta P.S. Case No. 541/2001 under Section 147/148/149/326 IPC and commenced investigation. The police recorded the statement of the witnesses, prepared sketch mp and sent the injured for treatment. During investigation, the victim Abul Ali succumbed to the injuries and thereafter the body was subjected to postmortem examination and Dr. Tarun Talukdar (PW-1) conducted the postmortem examination.
4. The Autopsy doctor (PW-1) found the following injuries on the body of the victim.
"1) Healed wound over both ankle extensor surface of the joint 1"x1" respectively.
Page No.# 3/8 (2) Healed wound over flexor surface of both wrist 1"x ½" size.
(3) One healed wound the right buttock of1" x 1" size.
(4) Whole scalp is oedematous.
(5) Right temporal and right parietal bone fractured communication 'V' shaped. Occipital bone fractured in midline, temporal bone is fractured just above the mastoid region also, at frontal bone fracture in high level. Large blood clots seen over the tentoriam and sulci. Displacement of brain towards left by the clot. Brain is oedematous and ventricles are obliterated by the clot."
In the opinion of the doctor, all the injuries are ante mortem in nature and the death was caused due to shock and hemorrhage as a result of the injury sustained on the head.
5. On completion of the investigation charge sheet was laid against all the seven accused persons named in the FIR. The accused Habibar Rahman having been found as juvenile, his case was sent to the Juvenile Justice Board and the offence being triable by court of sessions, the case of the other accused was committed to the court of Sessions. Learned Sessions Judge framed charge against all the accused under Section 302/34 IPC, to which they pleaded not guilty. During trial, one of the accused, namely, Golbhanu Nessa @ Goljahan died and eventually, the present appellants stood trial.
6. In order to establish the charges, the prosecution examined as many as 9 witnesses and on appreciation of evidence, learned Sessions Judge convicted the appellants under Section 302/34 IPC and awarded sentence as indicated above.
7. We have considered the submissions made by the learned counsel for the appellant and scrutinized the evidence and material brought on record.
8. Mr. H.R.A. Choudhury, learned Sr. Counsel for the appellants submits, that initially quarrel took place between the victim and the appellant Rina Begum on the issue of cutting branches of a tree and thereafter the victim was allegedly assaulted by other appellants too. When the occurrence initially started between the victim and the appellant Rina Begum and others were not present at the place of occurrence, who came later, the rest of the appellant could not be held to have shared common intention with Rina Begum to cause death or injury to the victim and therefore all the appellants could not have been convicted under Section 302 IPC with the aid of Section 34 IPC. Further contention of Mr. Choudhury is that even Rina Begum could not have been convicted under Section 302 IPC, inasmuch as, the intention of causing death was totally absent in view of the nature of injury and the circumstances under which the alleged injury leading to death of the deceased was caused.
9. Supporting the impugned judgment of conviction and sentence, learned Addl. P.P., Ms. S. Jahan contends, that common intention can be generated even at the place of occurrence and prosecution evidence was sufficient to prove the charge against the appellants and therefore, the impugned judgment calls for no interference.
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10. Three doctors were examined by the prosecution in this case. The first one being PW-1, who conducted the postmortem examination, according to whom, the death of victim Abul Ali was caused due to shock and hemorrhage as a result of head injury. During cross examination, he stated, that the age of the injury was not mentioned, though the victim died after about 27 days of receiving the injury. PW-9, Dr. Bhupen Barman, who treated the victim till his death deposed that the victim was admitted in Advance Neuro Science Hospital at Kahilipara on 24.10.2001 and he died on 20.11.2001 at about 5.40 AM. According to him, "immediate cause of death was due to head injury, inasmuch as, he was suffering from respiratory and renal failure." PW-7, the third doctor was examined to bring on record the injury sustained by other prosecution witnesses. PW-7, who examined the victim Abul Ali on the day of occurrence at Barpeta Civil Hospital testified that the victim Abul Ali was in semi conscious stae and there was bleeding from the right ear and the injured was vomiting, which was the sign of head injury. In cross examination, he stated that at the time of examining the victim on the day of occurrence, he did not mention about any external injury sustained by the victim. This witness further stated that he also examined Arfatun Nessa (PW-3) and Jibu Ali (not witness). According to him, Arfatun Nessa sustained one incised wound on the scalp right to the midline and one swelling injury at the base of her middle finger of the left hand. The injury No. 1 was caused by sharp weapon and injury No. 2 was caused by blunt weapon. Jibu Ali sustained one lacerated injury on the scalp, which was simple in nature. Learned Sessions Judge framed the charge under Section 302/34 IPC against all the appellants only for the death of the deceased Abul Ali, no charge was framed for causing injury to Arfatun Nessa and Jibu Ali and therefore, the evidence of PW-7 with regard to injury of Arfatun Nessa and Jibu Ali may not be of any consequence, inasmuch as, the appellant stood trial only for the alleged murder of the victim Abul Ali.
11. PW-3, mother of the victim deposed that when the victim Abul Ali cut a small branch of Soura tree for cleaning his mouth, the appellants Habibur and Naudhan dragged her towards the tubewell in their house and al the appellants started beating him with rod, dagger, dao etc. when she tried to interfere, the accused Habibur assaulted her with a dao and a result, she sustained injury on her head and left finger. She further stated that accused Naudhan also assaulted Jibu with iron rod. She raised alarm, hearing which, the labourers who were working in their house came and rescued the victim. During cross examination, this witness stated that her husband (PW-2) did not see the accused Naudhan dragging his son. The previous statement of this witness before police, which was confronted to her and was confirmed through the Investigating Officer (PW-8) shows, that in her previous statement, she did not state that Naudhan and Habibur dragged the victim to their house, rather in her previous statement before police, she stated that it was only Rina, who dragged the victim to their house. She also did not state before police regarding Naudhan assaulting Jibu and Habibur assaulting her.
12. PW-2, Rafit Ali, husband of PW-3 stated that when Abul Ali broke a branch of a tree to clean up his mouth, suddenly he heard that someone asking to kill his son and noticed that the accused Naudhan, Habibur, Rina & Kali, Maijan, Gulbhanu and Champa were dragging Abul Ali (victim) towards the tubewell inside their boundary. He also stated to have seen all of them being armed with dagger, lathi, spread etc and assaulting the victim with all those instruments. He also stated that Jibu, PW-3, PW-4 & PW-5 intervened and rescued the victim Abul Ali from the appellant. He further stated that in the process, Jibu and Mira also sustained injuries. He further stated that the victim died after 27 days of the incident. During cross examination, he admitted that he resides in a different house with his second wife and the children from his second wife at village-Durgahpur and the occurrence took place at Khandakarpara, where the victim and his other wife reside. He also stated that he came to the house of Page No.# 5/8 the victim on the day of occurrence. The previous statement of this witness was also proved through the Investigating Officer, which transpires that in his previous statement before police, he did not state that he was present at the place of occurrence or had seen the occurrence. Although, he deposed that he was present at the place of occurrence, from the very beginning and had seen all the accused persons including Rina Begum dragging the victim to their house and subjected him to assault, such evidence of PW-2 was negated by his wife (PW-3), who resides in the proximity of the place of occurrence, inasmuch as, PW-2 has categorically stated that her husband did not see the accused Naudhan dragging his son. Admittedly, this witness resides in a different village and he appears to be a chance witness. Although, he stated that he came to the place of occurrence, there is nothing in the evidence as to why or when he came there. On the other hand, though he projected himself to be an eye witness in his evidence in court, in his previous statement recorded under Section 161 CrPC, he did not project himself as eye witness. Therefore, the material contradiction in the oral testimony of PW-2 with the previous statement and the evidence of PW-3 that he did not see the accused person dragging the victim and the admitted fact that he resides in a different village makes it abundantly clear that PW-2 did not see the occurrence, though he projected himself as an eye witness and as such, in our considered view, no credibility can be attached to te oral testimony of this witness.
13. PW-4, the wife of the victim stated that when her husband (victim) broke a branch of Soura tree to clean up his mouth, the accused persons being armed with rod, dao, dragger etc. dragged him towards their tubewell and assaulted him by all those instruments causing severe injuries. She further stated that she along with PW-2, PW-3, PW-5 & PW-6, when tried to intervene, the accused also assaulted her. According to her, Habibur assaulted PW-3, her mother-in-law with a dao. The previous statement of this witness was also confronted and confirmed through the Investigating Officer, which shows, that in her previous statement, she did not state that all the accused persons being armed with dao, rod etc. dragged the victim towards their tubewell, rather she stated in her previous statement that there was altercation between her husband (victim) and Rina Begum and Rina Begum alone dragged her husband to their house, who also assaulted the victim with an iron rod. What therefore emerges from the testimony of this witness is that she also made considerable improvement in her statement and stood contradicted with previous statement on material facts, inasmuch as, before police she stated that Rina Begum dragged the victim, whereas, deposing in court she stated that all the accused persons being armed with dao, dagger, lathi, rod etc. dragged the victim towards their tubewell. In view of the above contradiction on material facts, testimony of this witness regarding involvement of other appellants except Rina at the beginning is hardly worthy of inspiring confidence.
14. PW-5, Chand Mahammad Ali stated in his evidence that at the time of occurrence, he was working at the top of the roof and from the top of the roof, he saw that altercation took place between the deceased Abul Ali and accused regarding cutting a branch of the Soura tree. He further stated that after such altercation, the victim was taken to the residence of the accused persons. He also stated to have seen the appellant assaulting Abul with iron rod and lathi. He further stated specifically that Naudhan assaulted Arfatun (PW-3) and Habibar assaulted Jibul. This witness also seems to have stood contradicted with his previous statement, inasmuch as, the previous statement of this witness recorded under Section 161 CrPC and confirmed though the Investigating officer shows, that he stated during examination under Section 161 CrPC that he did not see as to who assaulted whom, rather he stated before police, that there was quarrel on the issue of cutting branch of a tree and thereafter Abul was brought home from the house of the accused in injured condition. He also stood contradicted with PW- 3, inasmuch as, according to PW-3 she was assaulted by Habibar whereas according to PW-5 she was Page No.# 6/8 assaulted by Naudhan. Thus, in view of the previous statement of this witness, where he clearly stated that he did not see as to who assaulted the victim and only stated to have seen the victim being brought from the house of the appellants in injured condition, and contradiction with PW-3, claim of this witness to be an eye witness of the assault is hardly believable. Therefore, his evidence in court that he had seen the appellants assaulting the victim cannot be believed. What therefore, emerges from the testimony of the PW-5 is that though, he might have heard the quarrel and saw the victim Abul being brought home, he did not see the incident of assault, which admittedly took place in the house of the appellant.
15. PW-6 stated that while he was working with PW-5 in the house of the victim, he had seen all the appellants dragging the victim to their house and assaulting him with rod, dao etc. This witness also did not state before police that he had seen the appellants dragging the victim and assaulting him with iron rod, dao etc., rather he has stated in his statement recorded under Section 161 CrPC, that hearing due & cry, when he went to the house of the accused, he found the victim lying unconscious near the tubewell, wherefrom he was brought home. What is therefore evident from the testimony of the PW-6 is that though, projected to be an eye witness, in fact, he also did not see the occurrence of assault, rather he was a post-occurrence witness.
16. A dispassionate scrutiny of the oral testimony of PW-2, PW-3, PW-4, PW-5 & PW-6 makes it abundantly clear that PW-2 was not an eye witness to the occurrence and PW-5 & PW-6 also did not see the occurrence of assault or dragging the victim to the house of the appellants. Therefore, the only evidence left out which needs consideration is the oral testimony of PW-3 & PW-4. As already indicated above, although the PW-3stated that it was Naudhan and Habibur, who dragged the victim to their house, in her previous statement, she stated that it was only Rina Begum, who dragged the victim to their house. PW-4 though, in his evidence stated that all the appellants, which obviously include Rina Begum being armed with various weapons dragged the victim to their house, in her previous statement, this witness also stated that it was only Rina Begum who dragged the victim. Therefore, though PW-4 tried to implicate all the accused in dragging the victim to the house of the appellant, such evidence is hardly convincing, inasmuch as, she never implicated the other appellant except Rina Begum in her previous statement. Be that as it may, a careful scrutiny of the oral testimony of the PW-3 & PW-4 makes it appear that testimony of the PW-4 atleast with regard to involvement of accused Rina Begum is consistent.
17. What therefore emerges from the evidence of the prosecution witnesses is that initially occurrence started for cutting some branch of a tree leaning towards the boundary of the appellants by the victim Abul. It is also evident that there was initially quarrel between Rina Begum and the victim and the other appellants who are members of the same family were not present at the place of occurrence. It is also evident that the occurrence took place near the tubewell in the homestead of the appellants, where the victim was found lying in unconscious condition with injuries. Although, PW-3 stated in her evidence that all the appellant started beating the victim with iron rod, dagger as well as dao, she did not state as to who assaulted with which weapon. As per medical evidence of PW-1, no injury caused by sharp weapon was detected on the body of the victim. However, from the evidence of PW-4, we find that during cross examination, she stated that Naudhan, Habibar and Rina Begum assaulted the victim with iron rod. The medical evidence does not suggest more than one injury on the head and other injuries sustained by the victim were on non-vital parts of the body like, wrist, ankle, Page No.# 7/8 buttock etc. Multiple injuries sustained by the victim Abul and the nature of injuries clearly suggest, that all the injuries were not caused by a single person. However, what we notice is that the prosecution evidence falls short of proving conclusively as to who caused the injury on the head of the victim, which became the ultimate cause of his death.
18. Having regard to the nature of injury sustained by the victim, though initially quarrel started between Rina and the victim, presence of the other appellants and assaulting the victim by them cannot be totally ruled out, inasmuch as, occurrence took place inside their campus. However, the question remains as to whether all the appellants could have been convicted for the offence of culpable homicide with the aid of Section 34 IPC in the facts and circumstances of the case.
19. Section 34 of the Indian Penal Code lays down the principle of constructive liability and in order to attribute constructive liability or to invoke the provision of Section 34 IPC, prosecution needs to establish the following pre-conditions viz. (i) criminal act done by several persons, (ii) common intention in the sense of pre-arranged plan or prior meeting of mind and (iii) participation in the some manner in the act, forming part constituting the offence. Therefore, in order to attribute constructive liability to a person with the aid of Section 34 IPC, the primary pre-requisite is the common intention or prior meeting of mind. In absence of common intention or prior meeting of mind, mere participation would not be sufficient to attribute constructive liability under Section 34 IPC. Reason being that several persons may participate in a crime with different intention or even sometime there also may be similar intention. Therefore, unless there is common intention in the sense of prearranged plan or prior meeting of mind, Section 34 IPC shall not be attracted, because similar intention and common intention are not synonymous. The distinction between common intention and similar intention perhaps, may be compared with the civil concept of tenancy in common and common tenancy. Therefore, common intention cannot be confused with similar intention.
20. In the instant case, even the prosecution case is accepted in toto, the initially quarrel started between Rina Begum and the victim for cutting the branch of a tree leaning towards the land of the victim. It is also evident that the occurrence took place in the campus of the appellants. Though, some of the prosecution witnesses sought to project that the victim was dragged to the house of the appellants, by all the appellants, prosecution has not been able to prove beyond doubt that the victim was dragged to the place of occurrence within the campus of the appellants by all the appellants. Therefore, having regard to the facts and circumstances that, when initially quarrel ensued between Rina Begum and the victim Abul on a trivial matter and except Rina Begum, others were not present, the other appellant being the members of the same family, who came later and also from the nature of injury, in our considered opinion, all the appellants cannot be held to have shared the common intention, though, there might be similar intention. Another important aspect of the matter was that when the quarrel and fight took place between the victim Abul, a young man of 35 years with Rina Begum, a woman that too, in the homestead of Rina Begum, naturally the other members of the family would come forward, atleast to defend the woman and in that process it is also quite natural they may also assault the victim. When there was no common intention, all the persons who were found to have taken part in the assault of the victim, in some way or other, shall be liable only on the basis of their individual act or individual liability and the principle of constructive liability cannot be invoked so as to convict one for the act of others. Therefore, in our considered opinion, in absence of common intention, all the appellants cannot be held liable for the act of causing single injury on the head of the Page No.# 8/8 victim, which caused his death, though, they may be held liable for their individual act of causing the injuries, which were apparently not on the vital part nor those injuries were caused by any weapon of offence.
21. Though, both the PW-3 & PW-4 sought to implicate all the accused that they have assaulted the victim, the medical evidence demonstrates that the victim sustained a single injury on his head and there was no convincing evidence as to who inflicted the injury on the head of the victim. Evidently, except the injury inflicted on the head of the victim, all other injuries were inflicted on non-vital part of the body viz. on ankle, wrist and buttock.
22. We also take note of, that although the autopsy doctor (PW-1) has opined that the death was caused due to head injury, evidently the victim died during treatment after 27 days of sustaining injuries. PW-9, who treated the victim from the date of occurrence till his death, opined that although immediate cause of the death was head injury, the victim was also suffering from respiratory and renal failure. PW-7, who examined the victim initially and referred him for better treatment, did not notice any external injury on the head, though having seen blood coming out of the right ear suspected, that there might be head injury. In view of the above evidence of the PW-9, who treated the victim, that the victim was suffering from respiratory and renal failure and the death occurred after 27 days of receiving the injury and that the injuries were caused by blunt object as evident from the testimony of the doctor, PW-7, who attended the victim on the day of occurrence, the possibility of the victim surviving the injury could not be ruled out, had he not suffered from serious ailment like renal failure. There was no evidence on record to establish conclusively, that the injury on the head caused by blunt weapon would have caused death in the ordinary course of nature. There was also no evidence on record, that the appellant whoever inflicted injury on the head was aware of the renal failure of the victim. Thus, having taken note of all these attending facts and circumstances and the nature of injuries, in our considered opinion, nothing more than an intention to cause hurt to the victim can be attributed to the appellants who assaulted the victim and as such, conviction and sentence under Section 302 IPC R/W Section 34 IPC cannot be sustained. Accordingly, we set aside the conviction of all the appellants under Section 302 IPC, instead, convict them under Section 325 IPC. The record transpires that the appellants are in jail for nearly three years. We are of the considered opinion that the sentence for the period which the appellants have already undergone during investigation, trial and thereafter would meet the ends of justice. Accordingly, we sentence them to imprisonment for the period already undergone. Since the appellants have already undergone the period of the sentence, all the appellants be released and set at liberty forthwith, if not required in any other case.
23. Appeal stands partly allowed.
24. Send down the LCR.
JUDGE JUDGE Comparing Assistant