Page No.# 1/5 vs The State Of Assam
2021 Latest Caselaw 460 Gua

                                                                       Page No.# 1/5

GAHC010019182018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./73/2018

            JAMAL UDDIN CHOUDHURY AND 2 ORS,
            VILL. CHIPORSANGON PT-II, P.S. ALGAPUR, DIST. HAILAKANDI, PIN
            788801

            2: NIZAM UDDIN CHOUDHURY
            VILL. CHIPORSANGON PT-II
             P.S. ALGAPUR
             DIST. HAILAKANDI
             PIN 788801

            3: RAFIQUE UDDIN CHOUDHURY
            VILL. CHIPORSANGON PT-II
             P.S. ALGAPUR
             DIST. HAILAKANDI
             PIN 78880

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM.

            2:SIRAJ UDDIN MAZUMDER
            VILL. CHIPORSANGON PT-II
             P.S. ALGAPUR
             DIST. HAILAKANDI
             PIN 78880

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM

Page No.# 2/5

BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER (ORAL) 10.02.2021 (Mir Alfaz Ali, J.)

Heard Mr. HRA Choudhury, learned senior counsel representing the appellants, assisted by Mr. A. Ahmed, Advocate. Also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam as well as Mr. M. Kalita, learned counsel appears for the informant.

2. This appeal is directed against the judgment and order dated 19.12.2017 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 81/2019, whereby the appellants were convicted under Section 302 IPC and sentenced to imprisonment for life and fine of Rs.2000/- with default stipulations.

3. The prosecution case in brief was that on 12.02.2007, a goat belonging to the appellants entered into the vegetable plantation of the victim. When the victim was driving out the goat from his field, an altercation took place initially between Faizul Hoque (the victim) and the accused Jamal Uddin. On hearing such altercation, the other brothers of Jamal Uddin came to the place of occurrence and assaulted the victim brutally and finally the victim Faizul Hoque succumbed to injury during the treatment in the hospital.

4. The father of the victim lodged the FIR (Exhibit-6) on the basis of which Police registered Algapur P.S. Case No. 14/2007 under Sections 147/148/149/302/325 IPC and on conclusion of investigation submitted charge-sheet. During trial, prosecution examined as many as 12 (twelve) witnesses including the Doctor and the Police. The accused persons also examined 2 (two) witnesses in their defence. On appreciation of evidence, learned trial Court convicted the appellants and awarded sentences indicated above.

5. The Doctor, who conducted the autopsy, was examined as PW-9. According to PW-9, the autopsy Doctor, following injuries were found on the body of the victim.

Page No.# 3/5

" (i) Swarthy complexion, average built, male deadbody. Body cold on touch. Rigor mortis present all over the body and established. PM hypostoris present on back and fixed. Cotton bandage present on lower limbs. Saline needle prick present on left cubital fossa.

(ii) One lacerated injury 4 x 1 cm muscle deep present on left lateral forehead.

Wound stitched.

(iii) Some variable sizes abrasions present on anterior aspect of right leg.

(iv) One abrasion 5 x 0.5 cm present in front of right knee joint.

(v) Abrasion 2 x 1 cm x 1 x 0.5 cm present on the anterior aspect of left leg.

(vi) Closed fracture present on upper right leg.

Scalp externally healthy, contusion present on right frontal region. Skull and vertebrae healthy. Membrane and brain congested. Mild sub dural haemorrhage present on right hemisphere."

6. Besides the testimony of the Doctor, the trial Court also placed reliance on the evidence of PW-1,2,4 and 5, all of whom deposed that initially the altercation and quarrel ensued between the parties on the question of a goat, which entered in to the vegetable plantation of the deceased. The learned counsel for the appellants Mr. Choudhury while assailing the impugned judgment submits, that the oral testimony of PW-1, 2, 4 and 5 are not worthy of credence because of contradiction and inconsistence therein and as such no reliance could have been placed on the oral testimony of PW-1, 2, 4 and 5, for recording conviction and, therefore, the appellants deserve acquittal. The second limb argument of Mr. Choudhury is that even if the accused persons-appellants are held guilty, they could not have been convicted under Section 302 IPC, inasmuch as, the basic ingredients to constitute the offence of murder as defined under Section 300 IPC, viz. the intention to cause death was totally absent in the instant case. Learned Additional Public Prosecution Mr. Phukan referring to the oral testimony of the witnesses, more particularly PW-1, 2, 4 and 5, submits that there was huge gap of time in between the examination-in-chief and cross-examination and also in between the time of occurrence and the recording of evidence-in-chief and, therefore, some discrepancies were bound to appear which could not be avoided in case of human being.

7. Be that as it may, on our assessment of the oral testimony of PW-1, 2, 4 and 5 we find that despite some inconsistencies in the oral testimony, the broad facts that there was a quarrel on the question of the goat belonging to the appellants causing damage to the cultivation of the victim and that, in course of such altercation the appellants assaulted the Page No.# 4/5

victim causing injuries, which ultimately became fatal have clearly established. However, the medical evidence as indicated above shows that except the single injury on the forehead all other injuries were on legs, meaning thereby, on the non-vital part of the body. The weapon used also appears to be blunt object. It is also discernible from the evidence of the witnesses that injuries might have been caused by " lathi" (stick) which cannot be considered as a weapon of offence having regard to the social background of the appellants and the victim, all of whom were villagers and cultivators, inasmuch as a stick or the " lathi" is usually available in every house in the village. What we find herein this case is that, though the death was caused because of the assault made by the appellants, the nature of injury inflicted, the parts of the body selected for causing injury, the weapon used and that initially there was a quarrel on a trivial matter between one of the appellants and the victim, which led to the incident of assault speaks loud and clear that there was no intention at all to cause death of the victim.

8. Having regard to the nature of injury and the weapon used, it is also hard to say that the appellants had any intention to cause such an injury as is likely to cause death. Therefore, in our considered view, in absence of any intention to cause death or intention to cause such bodily injury as it likely to cause death, the conviction under Section 302 IPC is not sustainable. Therefore, we set aside the conviction of the appellants under Section 302 IPC, instead, convict them under Section 304 Part-II of the IPC. Having converted the conviction from 302 to 304 Part-II IPC, we also modify the sentence of the appellants to rigorous imprisonment for 4 (four) years. The sentence in default of payment of fine is also reduced to 15 (fifteen) days.

9. With the above modification in the conviction and sentence, the appeal stands partly allowed.

10. Send back the case records.

                             JUDGE                                         JUDGE
                       Page No.# 5/5



Comparing Assistant