Khajal Uddin vs The State Of Assam And Anr
2021 Latest Caselaw 1120 Gua

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GAHC010046192020




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

                                   Case No. : Crl.A./89/2020

               KHAJAL UDDIN
               S/O- LATE NAZIM UDDIN @ NASIM UDDIN, VILL.- DAKHIN JARUNI, P.O.
               PHUTOLI BAZAAR, P.S. LANKA, DIST.- HOJAI, ASSAM, PIN- 782446.

               VERSUS

               THE STATE OF ASSAM AND ANR
               REP. BY P.P., ASSAM

               2:MD. NUR MOHAMMAD
                S/O- LATE NAYEB ALI
               VILL.- LANKAJAN
                P.O. AND P.S LANKA
                DIST.- HOJAI ASSAM
                PIN- 782446

Advocate for the Petitioner     : MD. M H CHOUDHURY

Advocate for the Respondent : PP, ASSAM


                                      BEFORE
                         HONOURABLE MR. JUSTICE SUMAN SHYAM
                         HONOURABLE MR. JUSTICE MIR ALFAZ ALI

                                              JUDGMENT

Date : 23-03-2021

M.A. Ali, J.

Heard Mr. M.H. Choudhury, learned counsel for the appellant and Ms. B. Bhuyan, learned Addl. P.P., Assam for the respondent State.

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2. The challenge in this appeal is to the judgment and order dated 10.02.2020 passed by the learned Additional Sessions Judge, Hojai, Sankardev Nagar, in Sessions Case No. 35/2018. By the said judgment, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/-, in default, to suffer simple imprisonment for six months.

3. The prosecution case, as unfolded from the record is that on 27.05.2018, at about 4 PM, the appellant armed with a "dao" trespassed into the campus of Saleha Khatun (since deceased), hurled abuses at her and engaged in altercation. In course of such altercation and hurling abuses, the appellant hit Saleha Khatun from back side, causing her instantaneous death. Noor Mohammed, the younger brother of the victim lodged a report with the officer-in-incharge of Odali Tiniali Police Out Post, which in turn was forwarded to Lanka Police Station for registering a case. Treating the said report lodged by the informant Noor Mohammed as FIR, the officer-in-charge of Lanka Police Station, registered Lanka P.S. Case No. 281/2018 under Section 447/302 IPC and upon completion of investigation submitted charge sheet against the present appellant, who eventually stood trial before the Court of Session.

4. During the course of trial, charge was framed against the appellant under Section 302 IPC, to which, the appellant pleaded not guilty. In order to substantiate the charges, prosecution examined 10 witnesses. Upon completion of the prosecution evidence, the accused appellant was examined under Section 313 CrPC. The appellant took the plea of innocence and also examined four witnesses in his defence.

5. One Ikramul Hoque was examined as PW-1, who deposed, that on the date of the occurrence, he was engaged by the accused Khajal Uddin for erecting fencing on the boundary of his land. While he was erecting fencing with Khajal Uddin, the deceased Saleha Khatun came to the place of occurrence and a hot altercation took place between the accused and Saleha Khatun and the accused assaulted Saleha with a piece of bamboo. When Saleha (deceased) fell down having struck by the accused, the accused dealt 3/4 blows with a "dao". Having seen the occurrence, he became nervous. This witness Page No.# 3/7

also proved his previous statement recorded by the learned Magistrate under Section 164 CrPC and marked as Ext. 1. During cross examination, it was elicited that the victim was hurling abuses at the accused standing on the boundary of the land between the house of the accused and the deceased. This witness further stated during cross examination that initially the deceased was taken back from the place of occurrence by her daughter and again she came and started hurling abuses at the accused and in course of hot altercation between the two, the accused inflicted the injury.

6. Sanbanu Begum, the daughter of the deceased has been examined as PW-2. She deposed, that at the time of the occurrence, the accused Khajal Uddin along with Ikramul (PW-1) were constructing boundary fencing near the house of the accused Khajal Uddin. At that time, an altercation ensued between her mother (deceased) and the accused regarding the boundary and the accused assaulted her mother with a bamboo stick. She further stated, that when the deceased fell down being struck by the accused, the accused appellant again dealt several blows to the victim with a 'dao'. This witness also proved her previous statement recorded under Section 164 CrPC as Ext. 2. During cross examination, it was elicited, that there was boundary dispute between the accused and the deceased and several village meeting were held in order to resolve the issue. She further stated, that when the accused was constructing boundary fencing, the deceased raised objection alleging that there was encroachment of land, whereupon the quarrel ensued.

7. The PW-5, Noor Mohammed is the niece of the deceased. According to him, when the accused Khajal Uddin and the PW-1 were fixing post for the boundary fencing, the victim said something to the accused, which he did not hear as he was at some distance from the place of occurrence. He further stated, that when the victim told something to the accused, he assaulted the victim with a bamboo stick and thereafter the accused again assaulted her with a dao by giving 2/3 blows on the back and other parts of her body. During cross examination of this witness, it was elicited that there was dispute and quarrel regarding boundary between the accused and the deceased, since prior to the occurrence.

8. The first informant was examined as PW-6, who happened to be the brother of the deceased. He deposed that while he was going to Mosque to offer Namaj, he heard hue and cry near the house of the accused. Immediately he rushed to the place of occurrence and had seen that the accused was fleeing Page No.# 4/7

from the place of occurrence and his daughter Morjina was crying. He also noticed Saleha lying on the ground having injury. He also stated to have come to know that the occurrence took place due to the boundary dispute.

9. PW-7, Muklesur Rahman deposed that at about 3.30 to 4.00 PM, when he was going to play football, he had noticed altercation between the accused and the victim. He also stated to have seen the accused Khajal Uddin assaulting the victim with a bamboo stick. He further stated, that after hitting the deceased with bamboo stick, the accused also assaulted her with 'dao'. During cross examination, he stated that at the time of the occurrence, the accused was constructing fencing on the boundary of his land and therefore, the 'dao' was already in his hand. He further stated that hot altercation ensued between the deceased and the accused regarding construction of boundary fencing.

10. PW-8 Abdur Rouf came later, having heard about the occurrence and as such he was not an eye witness to the occurrence. The PW-9, Sahab Uddin and PW-3 Dilip Saikia were also not eye witnesses. Their testimony was to the effects, that they accompanied the police to the place of occurrence and a 'dao' was seized by police in their presence on being produced by the accused.

11. The doctor, who conducted the autopsy of the deceased was examined as PW-4, who found the following injuries on the body of the victim:

"i. deep cut injury on backside of left buttock size 8X4 cm

ii. Deep cut injury on the backside of head size 4X4 cm.

iii. Cut injury on right hand 2X2 cm"

In the opinion of the doctor, the cause of death were shock and hemorrhage as a result of the injuries and the death was caused within 24 hours before the examination.

12. The DW-1, Baharul Islam deposed that he went to the house of the accused for purchasing second hand cloth and came to know that he was not available in his residence and had gone to the market, which was at a distance of 10 kilometer from his house. He further stated that he had seen the accused in the market at the about 3-4 PM. During cross examination, he admitted that he arrived at his Page No.# 5/7

house at about 3-4 PM and at that time he did not visit the house of the accused.

13. The DW-2 deposed, that he and the accused together went to Derapathar bazaar at about 8 AM and returned from the bazaar at about 4.30 PM. According to him, the market was at a distance of about 6 kilometer from the house of Khajal Uddin. He further stated that at about 6 PM he heard that there was a murder. He also stated in his cross examination that it takes ½ an hour to cover the distance of 6 kilometer from the market to the house of the accused.

14. The DW-3 stated that he was selling utensils in the Derapathar Market and the accused also had a shop of old cloths. According to him in between 3-4 PM after closing his shop, he went to the shop of Khajal Uddin and purchased an old pant and shirt. He further stated that after coming back home, he took bath and when he came out of the house after taking bath, he had noticed large number of people assembled in the house of the accused. During cross examination, this witness stated, that he went to the shop of the accused to purchase cloth in between 3-3.30 PM.

15. What therefore transpires from the defence evidence is that the appellant made a feeble attempt to set up a plea of alibi by examining the defence witnesses, but the same has fallen through, inasmuch as, from the testimony of the DW-1, DW-2, DW-3 & DW-4, it has not been established that presence of the appellant at the relevant time and place was improbable.

16. Taking note of the above evidence, learned trial court convicted the appellant under Section 302 IPC and awarded sentence as indicted above.

17. Learned counsel for the appellant has not contested the finding of the learned trial court, that the injury causing death of the deceased was inflicted by the appellant or that the appellant was the perpetrator of the offence. However, contention of the learned counsel for the appellant is that a single blow was given by the accused on the vital part of the body in course of quarrel and fight and as such, there was neither any pre-meditation on the part of the accused nor had he any intention to cause death of the deceased and therefore, the appellant could not have been convicted for the offence of murder, at Page No.# 6/7

best, a conviction could be recorded under Section 304 Part-II IPC. Learned Addl. P.P. also very fairly submits, that the evidence and materials brought on record does not establish a case of murder against the appellant and he could only be convicted under Section 304 IPC for culpable homicide not amounting to murder.

18. We have considered the submissions made by the learned counsel for both the sides and also perused the evidence.

19. A dispassionate scrutiny of the oral testimony of all the prosecution witnesses would show, that the appellant and the deceased shared a common boundary and there was long standing dispute between them regarding the boundary of the land. It is also in the evidence of all the prosecution witnesses, that when the accused was erecting boundary fencing, the deceased raised objection and also hurled abuses at him, whereupon a hot altercation took place between them. It is also in the evidence of PW-1, that when the accused came to the place of occurrence and picked up altercation, she was taken away by her daughter and thereafter she again came to the place of occurrence and hurled abuses at the appellant, whereupon a quarrel took place between the accused and the victim and in course of such quarrel, the appellant initially hit the deceased with a bamboo stick and thereafter he also assaulted the victim with a 'dao' causing injury on her head. From the medical report, it appears that only a single injury was inflicted on the head, a vital part of the body and the other two injuries were on the non-vital part of the body being right hand and the left buttock.

20. What therefore crystallizes from the evidence is that quarrel ensued between the accused and the victim upon a dispute regarding boundary and at the first round of quarrel, the accused did not assault the victim. When the victim again came forward and picked up quarrel and hurled abuses at the accused, the accused initially hit the victim with a 'lathi ' and thereafter by a 'dao', which was with him as an implement for erecting fencing. Evidently, only a single blow was given on the vital part and rest of the injuries were on non-vital part. From the above fact, it is abundantly clear, that there was no pre-meditation on the part of the accused to kill the deceased and the injuries were inflicted in the heat of passion in course of the quarrel. The nature of the injury as reflected from the medical evidence also demonstrates that the accused appellant neither acted in cruel or unusual manner nor took any undue Page No.# 7/7

advantage, and as such, the act of the accused causing death of the deceased in the facts and circumstances of the present case squarely comes within the sweep of exception 4 to Section 300 of the IPC and as such his conviction under Section 302 IPC is not sustainable. In fact, there is also no dispute at the bar, that the accused is liable to lesser punishment under Section 304 IPC for culpable homicide not amounting to murder, instead of murder and therefore, the only question left to be decided is whether the appellant deserves to be punished under Part-I or Part-II of Section 304 IPC.

22. Learned counsel for the appellant submits that the accused deserves to be punished under Part-II of Section 304 IPC as there was no intention to cause death. As provided in Section 304 IPC, a person is liable to punishment under Section 304 Part-II IPC, when the act causing death is done only 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. But if the act, by which death is caused, is done with the intention of causing death or causing of such injury as is likely to cause death, punishment shall be under Part-I. From the evidence of the doctor (PW-4) as well as the ocular evidence, it has been established that three cut injuries were inflicted by sharp weapon, out of which, one was on the vital part of the body, i.e., head. Therefore, having regard to the nature of injury, weapon used being sharp and injury having been inflicted on vital part of the body, it cannot be said, that the accused did not have the intention to cause death or such bodily injury as is likely to cause death. Therefore, in our considered view, the accused, in the facts and circumstances of the case shall be liable for punishment under Section 304 Part-I and not under Section 304 Part-II. Accordingly, we set aside the conviction under Section 302 IPC, instead, convict the appellant under Section 304 Part-I and sentence him to rigorous imprisonment for 10 years. The fine of Rs. 5000/- and default sentence therefor, remains unaltered. The period undergone by the accused during investigation and trial shall stand set off.

23. The appeal stands partly allowed with the modification and alteration to the extent as indicated above.

24. Send down the LCR.

                                                                 JUDGE                            JUDGE


Comparing Assistant