Crl.A./50/2018
2021 Latest Caselaw 2246 Gua

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GAHC010000512018




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

                          CRL. APPEAL NO.50 OF 2018
                          1. Ayub Ali,
                          Son of Late Mujahid Ali.
                          2. Hisab Uddin,
                          Son of Ayub Ali.
                          Both are residents of Village:
                          Bordolong, PO: Karikhana, PS: Lanka,
                          District: Hojai, Assam, PIN: 782446.
                          3. Kamal Hussain @ Babu Miya,
                          Son of Abdur Rahim,
                          Resident of Village: Kapilipar, PO:
                          Karikhana, PS: Lanka, District: Hojai,
                          Assam, PIN: 782446.
                                              ........Appellants
                                 -Versus-
                          1. The State of Assam.
                          2. Saj Uddin,
                          Son of SamsUddin,
                          Resident of Village Bordolong,
                          PO: Karikhana, PS: Lanka, District:
                          Hojai, Assam, PIN: 782446.
                                            ........Respondents

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the Appellants :Mr. A. Ahmed, Advocate. For the Respondent No.1 :Ms. S. Jahan, Additional Public Prosecutor, Assam.

Date of Judgment & Order: 17th September, 2021.

JUDGMENT & ORDER (ORAL) (Sudhanshu Dhulia, CJ)

Heard Mr. A. Ahmed, learned counsel for the appellants. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing for respondent No.1, i.e. State of Assam. None has appeared for respondent No.2.

2. This Criminal Appeal has been filed by the appellants challenging the order dated 04.12.2017, passed by the Additional Sessions Judge, Hojai, by which the present appellants have been convicted under Sections 323/302/34 IPC and have been sentenced for rigoruous imprisonment for life and fine of Rs.10,000/- each, with default stipulations.

3. The incident occurred at village "Bordolong" in the district of "Nagaon". The case of the prosecution as per the contents of the FIR is that on 11.12.2007 at about 3:00 PM the five assailants, namely, Md. Ayub Ali, Md. Minhaz Uddin, Md. Hisab Uddin, Md. Babu Miya and Musstt. Kamalarun Nessa, who were armed with "dao", rod, axe etc., barged inside the property of the informant, which is a residential house, withan enclosed yard. There was an argument over a previous dispute and then there was an argument with the elder brother of the informant, i.e., the deceased Md. Taz Uddin. Sensing danger, Taz Uddin started to run away from the place. He was chased by the

accused persons who finally caught him in the nearby agricultural field of Ajgar Ali, which was about 200 meters away from his house, and killed him on the spot by inflicting blows with sharp weapons which they were carrying. After that they had also beaten up Musstt. Khadija Begum, i.e. wife of the deceased Md. Taz Uddin. She was beaten with arod which fractured her left hand.They also kicked and inflicted blows on Musstt. Aftarun Nessa and Musstt. Amirun Nessa causing injuries on their lower abdomen, legs, hands and other parts of their body. It was also alleged in the FIR that the assailants took away some important documents, cash amount of Rs. 15,000/- and ornaments etc. They left the scene saying "Where is your father ? We will surely kill him."

4. At this juncture it will be necessary to mention at the very threshold that both the victim and the deceased as well as the assailants and their familiesare very closely related. The deceased was the realnephew of the present appellant no. 1 and the remaining accused are hisfirst cousins.

5. Police investigated the matter and thefive accused personswho were named in the FIR, are as follows:

1. Md. Ayub Ali.

2. Md. Minhaz Uddin.

3. Md. Hisab Uddin.

4. Md. Babu Miya.

5. Musstt. Kamalarun Nessa.

6. Out of the five accused, accused no. 2, Md. Minhaz Uddin is absconding and, therefore, the trial did not proceed against him. Accused no. 4, Md. Babu Miya was declared a juvenile and the trial against him is going on before the Juvenile Justice Court. Regarding accused no. 5, Musstt. Kamalarun Nessa, final report was submitted by the police and, finally, thetwo accused, namely, Md. Ayub Ali and Md. Hisab Uddin faced trial and were finally convicted as alreadystated above.

7. At this stage, a reference to the inquest report may also be made. The inquest report is dated 11.12.2007, which reads as under:

"INQUEST REPORT

Ref: Lanka P.S. G.D.E. No.248 Dt. 11-12-07

Now, I, Bipin Ch. Nath, S.I., Lanka P.S., accompanied by the O/C and the staff have arrived at the agricultural field of Ajgar Ali of Bardalang and upon finding the dead body of Taz Uddin lying north and south with the face upward and upon identification of the dead body by deceased's younger brother Saz Uddin, start holding inquest on the dead body in presence of the below signed witnesses to the following effect:

The age of the deceased is about 28 years. Hair is about 1½ inches long. Injury is present on the scalp and the brain substances have come out through the said injury. Injury mark is present above the left eye. No injury is seen on the face. There is blood in the ear(s), but no injury is seen. The deceased is clad in a checked red sporting vest. The hands are resting on the abdomen and no injury mark is found in the hands. No injury mark is found in the chest and abdomen. One black thread around the waist, a pair of briefs, and a checked blue lungi are also found in the wearing of the deceased. The excreta or injury mark is seen in private part. The legs are lying straight and no injury mark is seen on the legs. Now, the dead body is examined by turning it over, but no injury

mark is found on the back. No injury mark is present in the anus. ON interrogation of the witnesses it could be learnt that around 3:00 p.m. today the accused person, armed with lath, rod etc., chased him (deceased) to the field from his house and surrounding him in the field, they assaulted him to death. Yet, to ascertain the actual cause of death, the dead body is being sent to B.P. Civil Hospital, Nagaon for autopsy."

8. The post-mortem was done on the dead body on 12.12.2007. The relevant portion of the post-mortem report reads as under:

"2. Wounds - position, and character:

1. Skull bones fractured at the junction of Rt. frontal- occipital region with exposure of the membranes.

2. An incised wound (6 ½ X ½ X deep into the cranial cavity) just below the Lt. eye. Bleeding from Lt. ear and fact."

9. Meanwhile, police after itsinvestigation filed charge-sheet and the matter was committed to Sessions. Thereafter, the Sessions Court framed charges against the two accused persons under Sections 448/323/302/380 read with Section 34 of the IPC. Since the incident had occurred at Hojai area, which had been declared as a separate district and a separate Sessions Court was established at Hojai, the matter stood transferred to the Sessions Court at Hojai where the case was assigned to Additional Sessions Judge, Hojai.

10. The prosecution in order to establish its case examined as many as ten witnesses apart from placing many other exhibits, such as, injury reports, sketch map, seizure memo, etc.

11. The alleged incident took place in broad day light at 3 P.M., on 11.12.2017. There are three eye-witnesses in the form of PW3, Musstt. Khudeja Begum, PW5 Musst. Amirun Nessa and PW8, Musstt. Aftarun Nessa. All three are the women of the household where the incident first started and which is the house of the deceased.

12. PW2 Md. Sazuddin @ Sajan, who is also the informant, in his examination-in-chief says that the accused Ayub Ali (appellant No. 1) is his paternal uncle and the other accused persons are his cousins, i.e. children of accused Ayub Ali (he is not an eyewitness to the incident through). The incident took place seven years back, at about 3:00 PM when the assailants entered their house and hurled abuses on his elder brother Taz Uddin (i.e. the deceased). The accused were armed with lathi, rod, crowbar, etc. Thereafter they chased Taz Uddin for a distance of about 200 meters and then started assaulting him. At the time of the assault, his mother, i.e. Aftarun Nessa and his sister-in-law, Amirun Nessa, who is the wife of the deceased, raised alarm. On that the accused persons started assaulting his mother and his sister-in-law as well,as a result of which they too sustained injuries. After the assault they took away some documents as well as cash amounting to Rs. 15,000/- from the house. Taz Uddin succumbed to his injuries. This witness then stated that he lodged a written FIR in the Police Station the very same day. The FIR bears his signature. As the first task was to

take the injured to the hospital as well as the dead body to the hospital, there was some delay in lodging the FIR. The incident occurred at around 3:00 PM and the FIR was lodged at 9:00 PM (i.e. after 6 hours of the alleged incident). He was also one of the witnesses to the inquest report, which was prepared before the Magistrate.

13. In his cross-examination this witness (PW2) states that after the FIR was lodged the police conducted investigation and seized lathi, road and crowbar. His signature was also obtained in the Seizure Memo. This witness further states that he had first taken the dead body to the police station and then to the hospital. The FIR was written by one Ranjit, who is a teacher. This witness admitted that he did not mention the cause of the delay in lodging the FIR. He also admitted that in the FIR it was written that the accused persons were carrying dao, rod and axe but, in fact, they were carrying lathi, rod and crowbar. Taz Uddin, i.e. the deceased was actually assaulted witha crowbar and not by a "dao". This witness admits that he was not an eye-witness and at the time of the incident he was at "Lanka Bazar", which is about six kilometer away from the place of occurrence.While coming home he got the FIR written as informed to him by his mother and sister-in-law. He denies the suggestion given by the defence that the accused had not committed the crime.

14. PW3, Mustt. Khudeja Begum (deceased's wife), is an eye-witness who was also injured in the incident. PW3 states that the informant is her brother-in-law and accused Ayub Ali is her paternal uncle and the rest of the accused are the sons of Ayub Ali. She states that at around 3:00 PM on the fatal day some eight years back the accused persons armed with lathi, rod, "dao" and crowbar trespassed into their property and hurled abuses on her husband. Her husband was scared and started to flee the scene, but was chased by the assailants and was killed. In her attempt to save her husband, she was also beaten by the accused and,in fact, her hand got fractured. When her mother-in-law intervened, she too was assaulted and beaten up. She then states that her left arm was fractured and it was accused Minhaz Uddin (absconder) who had caused injury to her. Later the accused persons took away some documents and cash Rs. 15,000/- from their house. On suggestion being made as to why she did not name the accused, who had caused injury to her, she replied that she was unconscious and did not remember correctly whether it was Minhaz Uddin or someone else who had hit her. On again being suggested about the details of the arms carried by the accused persons, she states that she had forgotten as to what details were given by her about the arms being carried by each of the accused persons, or that the accused persons had caused fracture on the head of her husband. She states that she had briefed her

brother-in-law about the incident, who had then lodged the FIR. She specifically states that it is the accused persons who had killed her husband after giving him fatal blow with a crowbar. She says that one end of the crowbar was sharp edged at one end and that from this end the blow was given on the head of her husband. She further states that she had not seen the crowbar in the Court. She admits that initially there was a quarrel between the accused persons and her husband in the market and actually issue of quarrel between her husband and the accused persons was the boundary line of the land and this had happened about two/ three months prior to the incident. She also admits that her husband had been in jail earlier in connection with a police case lodged by one Sirazul. Then she denies the suggestion made by the defence that the accused persons had not assaulted her husband with lathi, crowbar, etc.

It is clear from the records as well as the evidence produced by the prosecution that this particular witness was injured in the incident. She clearly states that her left arm was fractured and this was caused by a blow given to her by a lathi by accused Minhaz Uddin who is absconding.

15. Considering the fact that the presence of this particular witness, although she is the wife of the deceased, cannot be denied for the simple reason that the incident had occurred near the house of the deceased, and in fact, it started in the house of the deceased. Moreover, this particular witness had intervened and was injured,

which is corroborated by the injury report as well as the statement of the doctor, who had examined her.

16. PW7, Dr. Ranju Rajkhowa states that on 11.12.2007 at 7:55 PM he examined Mustt. Khadeja Begum (wife of the deceasedas PW3) on the basis of police requisition. The victim was escorted and identified by Md. Abul Kalam, HG of Lanka Police Station. On examination of Khadeja Begum, he found the following injuries:-

"1. Swelling over the left arm with difficulty movement of left shoulder joint. Fracture shaft of humerus.

2. Haematoma over the left frontal region.

3. Pain and swelling over the inner side of the right eye."

In his cross-examination he admits that the injured person was referred for an X-ray examination of the left arm, which was caused by a blunt weapon. He further states that the X-ray report was not produced before him and, therefore, he cannot confirm whether it was a grievous injury or a simple injury. He also states that the difficulty in moving the left shoulder could be caused by other reasons than the fracture, which could be due to falling on hard substance. He denies that he had not examined Mustt. Khadeja Begum as OPD patient but examined her on the requisition made by the police.

17. The other two injured persons, namely, Mustt. Amirun Nessa (PW5) and Mustt. Aftarun Nessa (PW8),

were also medically examinedby Dr. Ranju Rajkhowa (PW7). Their injury reports reads as under:-

Name and address Description of Injuries Nature of Nature of Injuries Weapon (2) Most. Aftarun (1) Pain all over the Simple Blunt Nesa, 50 yrs, F scalp following pulling W/o Md. Sajuddin of hair.

of same address as above.

(3) Most. Amirun (1) Pain over upper Simple            Blunt
Nesa              back.
W/o Md. Sajjuddin
(17 yrs) of same
address as above.

The medical report of all the three injured eyewitnesses, i.e. PW3, PW4 and PW8 are part of record.

18. PW4 is Dr. M.R. Mathabor, who had conducted the post-mortem examination on the body of the deceased. He admits having conducted the post-mortem and states that during the time of conducting the post-mortem, he found the presence of rigor mortis, skull bone was fractured in the junction of right frontal and occipital region with exposed of the membrances. An incised wound of size 6½" X ½" into a prime cavity, below the left eye was also found. There was bleeding from left eye and face. According to his opinion, the death was due to shock and haemorrhage caused by the injuries sustained.

19. PW5, Mustt. Amirun Nessa, is another eye witness, who is the wife of the informant. This witness on her examination-in-chief conducted on 20.06.2015 states that

about seven years back the accused persons chased Tazuddin away from his house assaulted him and killed him. The deceased Tazuddin was her "Bhaisahur" (husband's elder brother). She also states that the accused persons, armed with lathi, dao and crowbar came to the house of the deceased and took Tazuddin away. They raised alarm, her mother in-law shouted out. The accused persons had also broken the hand the deceased and had also assaulted her mother in-law. This witness was again cross-examined but nothing has come out which may create doubt on the veracity of her statement.

20. PW6, Md. Ajgar Ali, is the witness to the seizure, who admits same in the Court. PW7 is the doctor, who had examined the injured Mustt. Khadeja Begum (wife of the deceased)as we have already referred to above.

21. PW8, Mustt. Aftarun Nessa, is the mother of the deceased. In her examination-in-chief conducted on 18.08.2015, she states that the incident took place around eight years back. In her cross-examination, she repeats the incident as PWs 3 and 5 that the incident took place at 3:00 PM and her son Tazuddin was killed, who was chased for about 100 Mtrs. She admits that she has poor eyesight. She further states that her two daughters-in-law took her to the place of occurrence. She states that her son was killed in the agricultural field.

In her cross-examination, she admits that she cannot say as to which accused person came first and who

came later. She also admits that she and her daughters-in- law were assaulted by the assailants.

22. PW9, Mustt. Rustana Begum, is again another witness produced by prosecution, who turned hostile. PW10 is the Investigating Officer.

At this stage, before going to the evidence given by PW10, it may be mentioned that there is another witness in the form of PW1, Raisul Haque. It was Raisul Haque, who first reported about the dead body lying in the field. He was a witness only tothat extent.

23. PW10 admits in his cross-examination that he did not file the FIR on the basis of the information furnished by Raisul Haque. The FIR was actually filed on the basis of a written FIR lodged by the informant PW2. The incident happened in a sugarcane field which is about 100 Mtrs. Away from the house of the deceased where the incident had started. He admits that the injured witness Khadeja Begum initially did not tell him that it was Minhaz Uddin who had broken her hand, etc.

24. Thereafter the statement of the accused persons were recorded under Section 313 Cr.PC where they denied to have committed the offence and alleged that they have been falsely implicated.

25. As already stated above, this is a case of murder wherethere are three eyewitnessesto the murder.All the three eye witnesses,though related tothe deceased,are

naturaleye witnesses and their presence on the scene ofthe crime cannot be denied. All of them are injured eye witnesses.On the strength of their evidencewhich was placedbefore the Trial Court, no finding other thanwhat has actuallybeen arrived at by the Trial Courtcould have been recorded.It is an open and shut case of the prosecution, inter alia, based on three natural and reliable eye witnesses. It is also a case of prompt FIR i.e. six hours from the alleged incidence and it cannot be called a delayed FIR, though such suggestion has come in the cross-examination of some of the witnesses.

26. The, minor discrepancies in the testimony of the three eye-witnesses, i.e. PW3, PW5 and PW8, such as not mentioning crowbar earlier or the distance of the house from the place where the deceased was killed are not material when we examine the social background. The incident happened in a village. The witnesses are illiterate as even semi-literate women of a villageand if there has not been a precise description of the weapon or when a Crowbar has been called a rod etc., no benefit can be given to the defence. They are natural witnesses. Their testimony, on the other hand, inspires confidence of this Court. We find that this is a case where the prosecution has been able to prove its case beyond reasonable doubts.

27. At this stage, the learned counsel for the appellants argued that even if the veracity of the incident

cannot be denied as there are three eye witnesses to the incident, yet this is a case where the appellants could have been convicted under Section 304 (Part I or II) of the IPC and not under Section 302 IPC.We fail to understand as to how this could have been done considering the facts and circumstances of the case. This case does not come under any of the exceptions which have been enumerated under Section 300 IPC.

28. The learned counsel for the appellants would argue that the case comes under Exception-4, i.e. "Culpable homicide is not murder ifit iscommitted without premeditation inasudden fightin the heat ofpassionupon a sudden quarrel andwithout the offenderhaving taken undue advantageor acted in a cruel or unusual manner."

29. Thefacts of the case, however, do not put thiscase in thecategory of exception, as being argued before this Court.The assailants had entered the house of the deceased at around 3:00 PM armed with crowbar, axe and rod. They shouted and abused the deceased and his wife and thereafter the deceased was chasedto the nearbysugarcane filedwherethey gave fatal blows onthe head and over the left eye of the deceased.These are two fatal injurieson the vital part of the body. In fact, injury No.1 has been describedin the post mortem report as follows:-

"1. Skull bones fractured at the junction of Rt. frontal- occipital region with exposure of the membranes."

This injury itself was enough to cause death of the deceased.

30. The conduct of the accused persons after the incident, which is also relevant fact to be considered under Section 8 of the Evidence Act, has to be seen.Alltheaccused persons hadrunaway from the scene of the crime.The incident took place on 11.12.2007. Thepresent appellants surrenderedonlyon22.02.2008, i.e. more than two months after the incident. Another accused Minhaz Uddin is still absconding. One of the accused had been declared as juvenile.

31. Under these circumstances, we do not find any scopeof interfere with finding of the Trial Court. The appeal is without any merit and is hereby dismissed.Theappellants are on bail. Their bail bonds are cancelled and sureties are discharged. They shall be taken into custody forthwith for serving the sentence imposed upon them by the trial court. Let the concerned Court be apprised of this order passed in appeal so that consequential action be taken.

               JUDGE                     CHIEF JUSTICE



Comparing Assistant