Amitava Roy, J.@mdashThis appeal witnesses a challenge to the judgment and order dated 13.9.2000 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 16/1997 whereby the Appellants herein have been convicted u/s 302 of the Indian Penal Code (''IPC'') and sentenced to suffer imprisonment for life and also to pay fine of Rs. 1,000 each, in default, to undergo R.I. for further six months. The Appellants are in jail since the above decision.
2. I have heard Mr. H.R.A. Choudhury, senior advocate assisted by Mr. A. Matin and Mr. LA. Hazarika, Advocates for the Appellants and Mr. K.A. Mazumdar, learned Public Prosecutor, Assam.
3. On a FIR lodged on 13.4.1995 by one Md. Chand Mia with the Officer in-Charge, Mayang Police Station alleging that the Appellant No. 2 had inflicted dagger injury in the chest of one Md. Nur Alam resulting in his death and further that the Appellant No. 1 and one Md. Akabor Ali had assaulted one Md. Hasen Ali, Mayong PS Case No. 23/1995 u/s 302/325/34, IPC was registered. In course of the investigation, Md. Akabor Ali absconded. On completion of the investigation, however, charge sheet was laid against the accused Appellants u/s 302/34, IPC. The case being triable exclusively by the Court of Sessions, it was committed to the court of the learned Sessions Judge, Morigaon. Charge was framed against the accused Appellant as above to which they pleaded "not guilty" and claimed to be tried.
4. In course of the trial that followed, the prosecution examined eight witnesses including the doctor who had performed the post mortem examination as well as the Investigation Officer. The statements of the accused Appellants were recorded u/s 313, Code of Criminal Procedure. The defence did not adduce any evidence. The impugned judgment and order followed.
5. Mr. Choudhury has urged that the evidence of the so called eye witnesses P Ws 2 and 5 being contradictory on material particulars, the prosecution had failed to prove the charge against the Appellants accused and, thus, their conviction and sentence is unsustainable in law. Without prejudice to the above, the learned senior counsel has contended that even assuming that some credence to the said witnesses vis-a-vis actual occurrence can be attributed, in the facts and circumstances of the case, as the incident admittedly was preceded by a quarrel between the parties, no intention of murdering the deceased can be ascribed to the Appellants accused and, therefore, their conviction u/s 302, IPC by no means can be sustained. In support of his contention, Mr. Choudhury has drawn the attention of this Court to the fact that the deceased was inflicted only one stab injury which according to him negated any murderous intention of the accused Appellants. The learned senior counsel, therefore, urged that without prejudice to the plea of the innocence of the accused Appellants their conviction be altered to one u/s 304, Part II, IPC and the sentence be reduced to the period already undergone by them.
6. Mr. Mazumdar in reply has urged that the evidence of the eye witnesses P Ws 2 and 5 being convincingly probative of the fact that the Appellants accused with an intention had caused the murder of the deceased, no interference with the impugned judgment and order is called for. He has dismissed the plea of want of intention of the Appellant accused, contending that even assuming that there was a quarrel between the parties preceding the same, the same by no means was enough to entitle the accused Appellants to avail the benefit of any exception u/s 300 of the Indian Penal Code.
7. The rival submissions to be appropriately appreciated, the evidence on record needs to be marshalled.
8. PW1, Taslimuddin, Gaonburah of the village concerned is not an eye witness of the incident. He stated that he was told by Chand Miah PW3 and Hasen Ali, PW2 that the Appellant accused Saha Ali had stabbed the deceased with a dagger. PW3 Chand Mia has also claimed to have been apprised of the incident by PW2 Hasen Ali. He however, is the informant and has proved the FIR, Ext. 1 and his signature Ext. 1(1).
9. PW5, Babar Ali, a cousin brother of the deceased stated that before the incident he (deceased) had visited his paddy cultivation on the land near the road about 3/4 nals from him (witness). The Appellants accused along with Md. Akabor Ali then had a quarrel with the deceased. According to the witness at that point of time Hasen the younger brother of the deceased was harrowing their field nearby. He stated that the Appellant accused Safar hit Hasen on his head with a stick and he fell down. Soon thereafter the Appellant accused Safar held the deceased and the Appellant accused Saha kicked him and inflicted a blow in his chest with a dagger which he pulled out immediately thereafter. Being injured NurAlam fell down on the paddy field and the accused persons fled away therefrom.
10. The defence in cross-examination of this witness sought to elicit some contradictions on his part vis-a-vis the statement made by him before the police. It was even suggested on behalf of the defence that at that point of time, the accused Appellant Saha Ali was away to Shillong.
11. PW6, Tota Mia, a cousin brother of the deceased affirmed to have seen the Appellant accused Akabor hitting the deceased with a sickle on the road following which the Appellant accused Safar Ali kicked the injured and ran away.
In cross-examination of this witness claimed to have seen the occurrence from the land located about a distance measuring one bigha therefrom. He also stated to have seen the Appellant accused Safar Ali dealing a blow on Hasen Ali with a lathi.
12. PW7, Mannas Ali in his examination in chief, referred to an altercation between the accused Appellant Akabor and the deceased near his land which he at that point was harrowing. Following the altercation, according to this witness, the accused Akabor thrust the sickle in his hand in the chest of the deceased. He stated that seeing this, Hasen Ali rushed to the place of occurrence.
This witness was declared hostile and was confronted with the statement made by him before the police in course of the v. investigation that the Appellant accused Safar had held Nur Alam and pressed him down and that accused Appellant Safar Ali had thrust the dagger in his chest.
13. PW8, Nasiruddin Borlaskar, Investigating Officer narrated the steps taken by him in course of the investigation.
14. The elaboration of the statements of the prosecution witnesses u/s 161, Cr.PC not being very material is avoided.
15. PW2, who claimed himself to be an eye witness to the incident stated that on the date of the occurrence at 3.30/4 p.m. while he was harrowing his field, the deceased had gone to the house of his uncle Jaban Ali to bring ''Chinadhan'' (China paddy). The deceased who had gone on a cycle kept it near the land on which he (witness) was harrowing and went towards further west to see his cultivation. The witness further stated that soon thereafter Nur Alam returned with tears in his eyes and when asked, he told that the accused Appellant Safar had punched him. The witness stated about the presence of the Appellant accused Safar Ali and one Akabor Ali also at the place of occurrence. On his intervention to dissuade them from fighting, the Appellant accused Safar attacked the witness with a lathi on his head and he fell down. After rising from the ground, this witness saw that the accused Akabor was holding Nur Alam from behind to be joined by Appellant accused Safar. While Nur Alam was held by accused Safar, accused Saha stabbed him in his chest with a dagger and Nur Alam fell down on the ground being injured and the accused persons fled away therefrom. The witness stated to have narrated the incident to Chand Mia, Mannas, Tota Mia and others.
In cross-examination, this witness affirmed that there was a quarrel between Nur Alam and the accused Appellant Safar and Akabor about 10 minutes prior to the occurrence.
16. PW4, Dr. Mabidur Rahman in course of his examination in chief, mentioned about the following injuries detected by him in course of the post mortem examination of the dead body. According to him, death was caused due to Haemorrhage and shock from the injuries sustained.
Thorax - Walls, ribs and cartilages - There was a sharp cutting wound at the left thorasic wall starting from neck towards the axilla, size 11/2 in length and 4" depth. There was blood discharge.
Pleurae - Right pleurae healthy. Left side there was sharp cutting injury.
Larynx and trachere - healthy, pale.
Right lung - healthy, pale.
Left lung - Haemothorax with penetrating injury to the left lung.
Pericardium - healthy, pale.
Heart - healthy, empty.
Vessels - healthy.
Abdomen - Walls - healthy, Peritoneum - healthy, Pale. Mojth, pharynx, oesophagus - Serosangunious discharge from mouth.
Stomach and its Contents - Contained semisolid food materials.
Small and large intestine - healthy, distanded.
Liver - healthy, pale. Spleen - healthy, pale.
Kidneys - healthy, pale.
Bladder - empty.
Organs of generation, external and internal - healthy.
Muscles, bones and joints -Injury already described.
Disease or deformity - Nil.
Fracture - There was fracture at the 2nd rib (left side) at the costocondral junction.
Dislocation - Nil.
More detailed description of injury or disease -A dead body of male boy of 18 years having sharp cutting injuries at the chest wall with Heamothorax. The findings were anti mortem in nature.
17. On an analysis of the evidence on record as above, we are of the unhesitant opinion that the accused Appellants had been involved in the incident leading to the death of Nur Alam. The evidence of P Ws 2 and 5 in our assessment lend full support to the above view. Having regard to the unimpeachable testimony of these witnesses to the effect that the accused Appellant Safar Ali and accused Akabor held Nur Alam so as to facilitate the dagger blow by accused Appellant Sahar Ali, their common intention in perpetrating the offence is also established.
The above notwithstanding, the sequence of events as narrated by these witnesses clearly reveal that preceding the same Nur Alam on one hand and the accused Appellant Akabor Ali had been involved in a confrontation over a dispute relating to their paddy land. Noticeably, PW2 had stated that immediately before the incident, Nur Alam who was on his way to his uncle Jaban Ali had gone to visit his land and cultivation and had returned soon thereafter with the complaint that he had been assaulted by accused Appellant Safar. Some intervention of this witness is also decipherable from his statement that he sought to dissuade the parties not to fight whereafter the incident of assault by the dagger followed. The manner in which Nur Alam was assaulted clearly indicate the agitated state of mind of the Appellant accused Saha. Significantly, however, though Nur Alam was clearly out numbered, one dagger blow was inflicted on him. In the attendant facts and circumstances, it can, thus, be reasonably inferred that had the accused Appellants intended to do away with Nur Alam without leaving any scope whatsoever for his survival they could have dealt with him mercilessly. The evidence on record, on the other hand demonstrate that after dealing a single blow, the assailants left the place of occurrence.
18. From the over all evidence of the prosecution witnesses, the incident of quarrel, inference of the state of agitated mind of the persons involved and also the fact that only one dagger blow was inflicted, we are inclined to hold that the accused Appellants though had acted in co-ordination with Md. Akabor Ali (absconded accused) in inflicting otherwise a deadly injury, they did not share a common intention of murdering the deceased.
19. On a cumulative consideration as above, we are of the view that the plea raised by the Appellants accused to convert the conviction into one u/s 304 Part II, IPC ought to be sustained. Ordered accordingly.
20. It is submitted at the Bar that the accused Appellants are in custody since 13.9.2000 and, therefore, have as on date suffered imprisonment for 9 years 4 months. Having regard to the maximum sentence of imprisonment prescribed by law for an offence u/s 304, Part II, IPC and in the extenuating circumstances as mentioned hereinabove, we are of the view that it would meet the ends of justice if the sentence proposed to be awarded is limited to the period undergone as on date by the accused Appellants. Ordered accordingly. The sentence of fine, however, is sustained. In other words, if the Appellants accused pay the fine in terms of the judgment and order of the learned trial court, they would be entitled in law to set at liberty thereafter.
21. This appeal, therefore, is partly allowed in the above terms.
