Gauhati High Court
Md Muslim Ali vs The State Of Assam on 23 October, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal
Pradesh)
Criminal Appeal (J) No. 14 of 2015
Md. Muslim Ali ----- Appellant
-Versus -
The State of Assam ----- Respondent.
For the petitioner : Mr. NJ Das, Amicus Curiae.
For the Respondent : Mr. PP Baruah, Public Prosecutor, Assam.
Criminal Appeal (J) No. 20 of 2015
Md. Alam Ali ----- Appellant
-Versus -
The State of Assam ----- Respondent.
For the petitioner : Mr. Santanu Borthakur, Amicus Curiae.
For the Respondent : Mr. PP Baruah, Public Prosecutor, Assam.
Criminal Appeal (J) No. 38 of 2015
Md. Pacha Ali ----- Appellant
-Versus -
The State of Assam ----- Respondent.
For the petitioner : Mr. JI Borbhuiya, Counsel.
For the Respondent : Mr. PP Baruah, Public Prosecutor, Assam.
2
PRESENT
HON'BLE MR. JUSTICE HITESH KUMAR SARMA
Date of hearing : 10th of October, 2017.
Date of Judgment and order: 23rd of October, 2017.
JUDGMENT AND ORDER
The Criminal Appeal (J) No. 14/2015, Criminal Appeal (J) No. 20/2015 and Criminal Appeal (J) No. 38/2015, have been preferred respectively by accused appellant, Muslim Ali, Alam Alil and Pacha Ali, against the judgment and order, dated 15.12.2015, in Session Case No. 83/2012, passed by the learned Sessions Judge, Morigaon, convicting and sentencing each of them to pay a fine of Rs 500 under Section 341 Indian Penal Code (IPC) and rigorous imprisonment for 10 years for offence under Section 304 IPC and fine of Rs 5000, in default to undergo imprisonment for six months.
2. The fact preceding these appeals are as follows:
3. On 31.10.2010 an FIR was lodged by Ms. Roonjoon Das alleging that accused Pacha Ali, the appellant in Criminal Appeal 38/2015, accused Alam Ali, the appellant in Criminal Appeal 20/2015 along with accused Muslim Ali, the appellant in Criminal Appeal No. 14/2015 and Jaila Ali (since absconding) restrained and assaulted Atul Devnath, the deceased, and as a result of the injuries sustained, he died.
4. On receipt of the FIR a case under Section 341/302/34 of IPC was registered as Jagiroad P.S Case No. 249/2010 and after completion of the investigation a chargesheet was laid against accused Pacha Ali, Alam Ali, Muslim Ali and Jaila Ali for offences under Section 341/302/34 of IPC.
5. The offences being triable exclusively by the Court of Session, the case was committed to the Court of Session at Morigaon. After hearing both sides charges under Section 341/302/34 of IPC were framed against all the chargesheeted accused persons to which they pleaded not guilty and claimed trial. During the trial 3 of the case, the accused Jaila @ Jalil Ali absconded and, accordingly, he was declared an absconder.
6. The trial proceeded against four accused namely, Pacha Ali, Alam Ali and Muslim Ali. Prosecution examined ten (10) witnesses including the Medical Officer and the Investigating Police Officers. At the closure of prosecution evidence, as required under Section 313 of CrPC, all the incriminating materials were put to the accused persons. The accused persons denied the accusation levelled against them and also declined to adduce any evidence. After hearing arguments tendered by the Prosecution as well as the defence, the learned Sessions Judge, Morigaon, convicted and sentenced the accused appellants as aforesaid.
7. All the three Criminal Appeals are taken up together for common hearing for disposal by this common judgment as the appeals are from a common judgment of the learned Sessions Judge, Morigaon.
8. I have examined the trial Court's record including the evidence laid by the prosecution as well as the judgment put to challenge in these appeals.
9. Heard the learned Amicus Curiae, Mr. N.J. Das (Criminal Appeal (J) 14/2015), Amicus Curiae Mr. S. Borthakur (Criminal Appeal (J) 20/2015) and learned counsel, Mr. J.I. Borbhuiyan (Criminal Appeal (J) 38/2015), appearing for the respective appellants and also the learned Public Prosecutor, Mr. PP Baruah, for the State.
10. On a reading of the impugned judgment it appears that the learned trial Court has found this case to be based on circumstantial as well as direct evidence. The learned trial Court has placed reliance on the testimonies of pw 2, Ms. Roonjoon Das, Pw 4, Ms. Usha Bordoloi, Pw 5 Ms. Usha Adhikari, pw 6, Mr. Naru Dey and pw 8, Mr. Mafidul Islam.
11. For the sake of convenient appreciation, the evidence tendered by some of the material witnesses are being reproduced hereinbelow ;
12. Pw 2, Roonjoon Das, the informant, deposed that the deceased was residing, as tenant, in her house. On the day of occurrence she was informed by a little boy that the deceased was having a quarrel with some persons. When she reached the spot she found the deceased Atul Devnath with two boys. She called 4 Atul to her house and while Atul followed her, the accused persons, armed with lathi, chased Atul, the deceased, but was intervened by Ward Member Usharani. According to pw 2 Roonjoon Das, Atul Devnath then drank a glass of water as he was feeling uneasy and soon thereafter he died.
13. Pw 4, Usha Bordoloi, deposed that the occurrence took place at about 12 noon by the side of railway line near her house. She came out of her house, after hearing hue and cry, and saw the accused Alam and Pacha were pulling a young boy. Thereafter Muslem and Jaila also joined the other accused and the quarrel continued. After Jaila left the scene, pw 4 Usha Bordoloi intervened and rescued the boy and send him towards Jagiroad College. She also deposed that she had also seen accused Alam and Muslem following the boy and taking him away.
14. Pw 5, Ms. Usha Adhikari, deposed that while she was in her house, she heard hue and cry. Then she came out of her residence and saw all the four accused were shouting. The accused appellant Pacha Ali, who was armed with lathi, was heard shouting with words indicating that they are looking for Atul Devnath.
15. Pw 6, Mr. Naru Dey, deposed that while he was in his shop, accused Pacha Ali and three others were shouting in front of his shop that if they find Atul Devnath they would assault and kill him. He also deposed that accused persons chased somebody and accused Pacha Ali was armed with a lathi.
16. Pw 8, Mahidul Islam, deposed that while he was going towards his vehicle along with Biju Paul he saw accused Pacha Ali, Jaila Ali, Muslim Ali and Alam Ali coming down from the hill. He also deposed that Atul Devnath, the deceased, was abusing Muslim Ali with filthy language whereafter Muslim Ali assaulted Atul with a fist blow. The quarrel continued till Roonjoon Das came and took away Atul Devnath.
17. I have also gone through the cross examination of these material witnesses. I find that apart from putting certain suggestions, no admissions or any substantive material could be elicited by the defence so as to render the testimony of these vital witnesses unworthy of reliance.
518. Now, the cause of death, as revealed from the post mortem report, is that there was an internal haemorrhage and shock following injury in lung, a vital organ. The post mortem report reveals that deceased had sustained fracture injuries on 6th and 7th ribs. There was also laceration present on the left side of lungs.
19. The evidence brought on record clearly establishes that deceased was hit with fist blows and injuries were caused on his ribs and lungs.
20. The learned trial Court has culled out various circumstances from the evidence brought on record. Some of the circumstances are as follows;
1. As deposed to by pw 5 & pw 6 the accused persons shouted in search of deceased Atul Debnath and at that time Pacha Ali was armed with lathi. These accused persons openly threatened that if Atul is found he would be killed.
2. As deposed to by pw 4 accused Alam and Pacha were pulling a young boy. Thereafter Muslem and Jaila also joined the other accused and quarrel continued. After Jaila left the scene pw 4 intervened and rescued the boy. She also deposed that she had also seen accused Alam and Muslem following the boy and taking him away.
21. The incriminating circumstances as well as the direct unimpeachable evidence of pw 2, Ms. Roonjoon Das, Pw 4, Ms. Usha Bordoloi, Pw 5 Ms. Usha Adhikari, pw 6, Mr. Naru Dey and pw 8, Mr. Mafidul Islam clearly establish the involvement of the accused appellants in the death of Atul Devnath. The presence of accused persons, their intention to kill the deceased by openly issuing a threat and the direct evidence that they had chased and beat up the deceased go to establish that the accused persons shared a common intention to cause bodily injuries to deceased.
22. The learned trial Court has found that the case comes within the ambit of culpable homicide not amounting to murder under Exception 1 to Section 300 IPC, and accordingly, convicted the accused persons. It may be pointed out, however, that the learned trial Court has not pointed out precisely which part of Section 304 IPC is attracted in the present case.
23. Now, as established by the evidence on record the deceased sustained injuries on his lungs and according to medical opinion lung is vital organ of body. The post mortem report reveals that deceased had sustained fracture injuries on 6th and 7th ribs. There was laceration present on the left side of lungs. The evidence on 6 record also establishes that accused persons assaulted the deceased by fist blows and other injuries to the extent of causing fracture of ribs.
24. In view of the evidence tendered on record, the finding recorded by learned trial Court that this is case of culpable homicide not amounting to murder is a justified conclusion on the facts of this case but for the sake of precision it is necessary to point out whether the case is covered by Part I or Part II of Section 304 IPC.
25. Section 304 IPC provides as follows;
304. Punishm ent for culpable hom icide not am ounting to m urder.--Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is 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.
26. The learned counsel for the accused appellant Md. Pacha Ali, in Criminal Appeal (J) No. 38/2015, has submitted that there is no eye witness to the occurrence and the time of occurrence is different as per the evidence of PWs 1, 2, 4, 5 and 8. He has also referred to the post mortem examination report which said that the injuries of the deceased might have been caused by fall on hard substance. This opinion in the post mortem examination report lost its relevance in view of the fact that there is direct evidence of causing assault on the person of the deceased by the accused appellants. So far as the time of occurrence is concerned, there are discrepancies in the evidence of the aforesaid witnesses and such discrepancies cannot touch the root of the case. So far the non-availability of the eye witness is concerned, we have already found that there are eye witnesses of assaulting the deceased by the accused appellant Md. Pacha Ali with blow on his chest and there is also evidence to show that the accused appellants including the accused appellant Md. Pacha Ali chased the deceased and took him away. Such 7 being the evidence, the argument raised by the learned defence counsel Mr. JI Borbhuiya, has no merit.
27. In the present case, the evidence on record clearly establishes that accused persons had inflicted injuries by fist blows. The fracture injuries on ribs and laceration in lung suggest blunt force sufficient to cause internal injuries.
28. In the case of Cham ru Budhw a v. State of M .P., AIR 1954 SC 652, the fatal injury was inflicted by the accused on the head of the deceased by only one blow. It was held that by the Hon'ble Supreme Court that the injuries were inflicted suggested that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death rather; the act was done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Indian Penal Code.
29. The analysis of post mortem report reveals that even though the injury was not sufficient in ordinary course of nature to cause death yet the fact that accused persons inflicted blows on the vital organs on the body of the deceased, fastens them with the culpability of knowledge that by giving such blows they would be causing such bodily injuries as was likely to cause death. The offence, therefore, falls under 304 Part II IPC. However, this Court has noticed that the learned trial Court perhaps, inadvertently, did not specifically mention that the conviction was, inter alia, under Section 304 Part II IPC.
30. Thus, no interference so far as conviction of the appellants is called for.
31. It appears from the records available before this Court that accused appellant Md. Muslim Ali of Criminal Appeal (J) No. 14/2015 and accused appellant Md. Alam Ali of Criminal Appeal (J) No. 20/2015 are undergoing imprisonment and as such they have completed 4 (four) years of imprisonment. Therefore, they be released forthwith subject to payment of fine, if the fine is not paid and they have undergone the imprisonment in default of payment of fine. So far accused appellant Md. Pacha Ali is concerned, it appears that he was granted bail by this Court vide order dated 09.11.2016 in I.A. (Criminal) No. 115/2016. So if he has already been 8 released in bail in accordance with the order of this Court, he is ordered to surrender before the learned Trial Court to serve out the remaining period of the sentence. His detention in custody during investigation and trial be set off against the substantive sentence of rigorous imprisonment.
32. So far as the sentence imposed on the appellants are concerned, this Court is of the considered view that the facts of the case does not justify the maximum penalty of 10 years of imprisonment under Section 304 (Part II) IPC as substantive punishment. It is established that deceased was abusing the appellant Muslim Ali with filthy language which provoked Muslim Ali and his companions, the other appellants. This provocation, though cannot be termed as grave and sudden yet can be termed as sufficient instigation to cause bodily injuries. The evidence on record does not establish that death of Atul Devnath was caused by previous meeting of mind among the appellants with proper orchestration. The common intention of all appellants, as gathered from the totality of the evidence on record, developed on the spur of the moment because of instigation by the deceased. In view of the nature of the injuries sustained by the deceased and the circumstances under which injuries were caused, the substantive sentence of appellants for the offence under Section 304 Part-II IPC is reduced to rigorous imprisonment for 4 (four) years, which, in the considered view of this Court, will commensurate with the offence with reference to the facts and circumstances of this case. However, the sentences of payment of fine for the offences under Section 304 Part II and under Section 341 of IPC are kept intact without any interference.
33. The period already spent by the appellants in custody, during investigation and trial shall be set off from the substantive sentence.
34. Appeals are, accordingly partly allowed.
35. Send down the LCR with a copy of this judgment.
36. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs 7000/- be paid to each of the learned Amicus Curiae as honorarium for the assistance rendered by them.
JUDGE Paul