Judgement & Order (Oral)

1. Heard Mr. B. Ahmed along with Mr. A. Paramanik, learned counsel for the appellant. Also heard Mr. D. Das, learned APP, Assam.

2. This appeal is directed against the judgement of conviction dated 05/08/2011 passed by the learned Additional Sessions Judge, FTC No.2, Kamrup, Guwahati in Session Case No. 349(K)/2008 convicting the accused appellant under Section 304 (II) IPC and sentencing him to undergo R.I. for 5 (five) years and also to pay a fine of Rs. 1,000/- and in default R.I. for further one month.

3. The prosecution story in brief is that the accused persons, namely, Jainuddin Ahmed, Nur Zamal Hoque, Abdul Jabed Ali, Abdul Barek, Sadek Ali, Abdul Hannan Choudhury, Abdul Hannan forming an unlawful assembly had assaulted the deceased, who was the nephew of the informant in the the premises of the Maheshkhuti Pre-Sr. Madrassa. According to the FIR lodged on 05/02/23008, the incident occurred on 04/02/2008 at about 10-20 a.m. The deceased succumbed to the injuries at Guwahati Medical College and Hospital.

4. On receipt of the FIR, the I.O. carried out investigation and on completion of the same submitted charge sheet under section 302 IPC. Charge sheet was submitted against the accused appellant and one Abdul Jabbar. The charge was read over and explained to the accused persons and they pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined 16 PWs including the Medical Officer and the Investigating Officer. The accused appellant was also examined under Section 313 Cr.P.C.

6. PW-1 Abdul Hussain stated in his deposition that on 04/02/2008, the Head Master of the School had complained to the accused appellant about his nephew having uttered obscene words during the prayer. The accused appellant then threw the books of his nephew at the Head Master and demanded a transfer certificate. Abdul Jabbar, the other accused seeing the commotion came to the spot and threatened that he would close down the Madrassa and also told the deceased that he would prepare a dish out of his head and asked the accused appellant not to sit tight. The accused appellant then sprang up into action and by means of a piece of wood, dealt a blow on the head of the deceased, who was standing on the veranda of the School and at the same time uttered Saala buji Lo and then fled away from the place of occurrence. Sustaining the injury, the deceased succumbed to the same at Guwahati Medical College and Hospital. Be it stated here that PW-1 was a teacher of the School and so also the deceased. Abdul Jabbar was the Head Master.

7. PW-2 Abu Taleb, in his deposition stated that on 04/02/2008 at around 10 a.m., he had heard the commotion at the School which was located near his house. Having reached the place of occurrence he could see Jabbar crying out loudly that he would close down the school and asked the students to go home. He also heard Jabbar instigating the accused appellant to crack the head of Rafiqul, the deceased. The accused appellant immediately picked up a piece of wood and dealt a blow on the head of the deceased.

8. PW-3, Fazal Haque, also stated in his deposition that he had gone to the place of occurrence hearing the commotion and had seen the accused appellant dealing a blow on the head of the deceased by means of a piece of wood.

9. PW-4, Mayan Ali, stated in his deposition that the accused appellant inflicted injury on the head of the deceased and thereafter fled away. He stated that the deceased was carried to hospital by him and along with one Talib and finally he was shifted to Guwahati Medical College and Hospital where he died on 05/02/2008. Be it stated here that PW-4 is the father of the deceased who in his deposition further stated that on 05/02/2008, he was abducted by Ainul Hoque and Nur Zama and kept him confined in a house at Nagaon and he was forced to put his signature on a piece of paper. PW-4 categorically denied having filed a case in any Court. This piece of evidence of PW-4 will have a bearing when referred to the defence evidence in the form of DW-1, who gave altogether a different story about which discussions will be made a little latter.

10. PW-5, Barkot Ali, in his deposition stated about seeing the accused appellant inflicting a blow on the head of the deceased and thereafter fleeing from the place of occurrence and the deceased falling down on the floor and his head bleeding profusely. On 05/02/2008, he came to know that the deceased had died. He is his deposition, also stated about seeing other witnesses at the place of occurrence.

11. PW-6, Seikh Abdul Mallick, in his deposition stated that on 04/02/2008, at around 10-30 a.m., the nephew of Jainuddin had refused to make prayer in the School, because of which there had been a show down between the accused appellant and the deceased, who had confronted the accused appellant regarding the misconduct of his nephew. Thereafter, commotion had followed, during which the accused appellant inflicted a blow on the head of Rafiqul i.e. the deceasedby a piece of wood, as a result of which the deceased fell down on the floor and the accused fled away. He also stated that the deceased was taken to the Police Station and to the hospital, from where he had been shifted to Guwahati Medical College and Hospital for treatment. He died on 05/02/2008.

12. PWs- 7 and 8 are reported witnesses, who in their depositions stated that they could come to know about the infliction of injury on the head of the deceased by the accused appellant.

13. PW-9 in his deposition stated that on the day of the incident, when the students were preparing for prayer, suddenly there was a commotion outside. She then came out and saw that the deceased lying on the floor with profuse bleeding from his head. She could come to know from her colleague that it was the accused appellant Jainuddin had assaulted Rafiqul. She also saw the accused appellant running away from the place of occurrence.

14. PW-10 in her deposition stated that on the fateful day, she heard commotion inside the School. She then along with her husband rushed to the spot and could see the accused appellant assaulting Rafiqul and thereafter fleeing away. Rafiqul fell down on the floor unconscious. He was then taken to hospital.

15. PW-12 is a seizure witness, who in his deposition identified the seized articles. Ext. 1 is the piece of wood and Ext. 2 was the blood stained towel. PW-13 is also a seizure witness, who in his deposition stated about seizure of the articles from inside the school. PW-14 in his deposition stated that the dead body was identified by the brother of the deceased. He then noticed the injury on the head of the deceased but he did not record his observation in the inquest report.

16. PW-15 in his deposition stated that he was the Officer-in-Charge of Nagarbera Police Station and had taken up the investigation into the case. He had submitted charge sheet against both the accused persons under Section 302/120/34 IPC. Ext. 5 is the charge sheet and Ext. 5(1) is his signature.

17. PW-16 is another Officere-in-Charge of Nagarbera Police Station, who in his deposition stated that on the basis of the FIR lodged by Taleb Ahmed, he had taken up the investigation and visited the place of occurrence and he had conducted the inquest of the dead body and had seized one blood stained town and one piece of wood. PW-16 had identified the towel and the piece of wood. He also proved the Ext. 6 in the Court.

18. PW-11 is the Medical Officer, who in his deposition stated that on 05/02/2008, he was working as Demonstrator at the Forensic Medicine Department at Guwahati Medical College and Hospital. He had conducted the post mortem examination on the dead body of the deceased, who was identified by Constable 2539, Jogesh Baishya and Muhammad who is the uncle of the deceased and found the following :-

A male dead body of dark complexion, rigor mortis present all over the body and developed, wearing a white pant, blue shirt, eyes and mouth are partly open. Venus, penis and scrotrum are healthy.

Injuries :

1. One stitched wound present on the lft parietal and occipital region. No. of stitches are 9 and size of the wound is 10 cm.

No ligature mark present on neck and on dissection underlying tissues are healthy.

Scalp, Skull and vertebrae :

Scalp contusion present all over the occipital and lest parietal region, Skull and vertebrae are halthy.

Cause of death : Death was due to coma resulting from injuries sustained on the head. Injuries are ante-mortem caused by blunt force impact. Time since death 6 to 12 hours (approx) Ext. 2 is the medical report. Ext. 2(1) is my signature. Ext. 2(2) is the nature of Dr. R. Chaliha, Professor and Head of the forensic medicine, GMCH. In his opinion the injury number 1 may result if heavy object falls on the head. It may also occur by dashing against concrete materials but it is rare.

19. From the above evidence on record, what is found is that all the PWs have corroborated each other in respect of the incident regarding administering the fatal blow on the deceased by the accused appellant, because of which he sustained head injuries and thereafter succumbed to the same.

20. As per the deposition of DW-1 i.e. the accused, on 04/02/2008, two students had got into mischief during prayer and one of them happened to be his nephew. When the Head Master of the School complained to him about the matter, he allegedly asked the Head Master to sort out the matter himself. According to DW-1, the deceased then accusing him of playing foul gave him a push. He further deposed that the father of the deceased who had come to the spot in the mean time also started striking him with a piece of wood. He then ran away from the place of occurrence. Thereafter the father of the deceased making him an accused along with others, filed a complaint. Later on the complaint was withdrawn. He exhibited Ext. A order sheets in 5 pages. Ext. B is the complaint petition, Ext. C is the complainants statement, Ext. D is the petition filed by the complainant withdrawing in the case.

21. In the cross examination of DW-1, he stated that he got himself examined by Doctor after the deceased had used criminal force on him but did not file any case against him. According to him, Mayan Ali had thrown the piece of wood at him which instead hit the deceased.

22. From the evidence of DW-1, what has emerged is that he did not deny the fact that there was an altercation between himself and the deceased at the time of prayer. The story narrated by him that a piece of wood was thrown and incidentally the same hit the head of the deceased is highly improbable, inasmuch as, a piece of wood thrown from a distance is unlikely to cause the fatal injury. The testimony of DW when tested in the touch-stone of the version of the PWs, it is found that all the PWS have corroborated each other regarding the incident. The injury referred to by the PWs also finds support from the medical evidence referred to above.

23. From the evidence and as discussed by the learned trial Court, the accused appellant at the time of occurrence, did not have the intention to cause death to the deceased so as to constitute an offence under Section 302 IPC. This is precisely the reason as to why the learned trial Court has convicted the accused appellant under Section 304 (II) IPC. I see no reason to interfere with the finding regarding conviction of the accused appellant.

24. Above now leads us to the question as to whether in the given facts and circumstances, the accused appellant deserves a lesser penalty. According to the learned counsel for the accused appellant, taking together the detention period during trial and after the impugned judgement of conviction, the accused appellant was in jail custody for 14 months 15 days. It will be pertinent to mention here that the accused appellant is on bail in terms of the interim order passed on 17/05/2012 in the Criminal Misc. Case No. 206/2012. At the time of commission of the offence, he was about 39 years of age. He was also working in the school as a teacher. Although the learned trial Court has acquitted Abdul Jabbar, the other accused but some of the PWs stated in their depositions that it was his instigation, the accused appellant inflicted the injury on the head of the deceased, because of which he died in the hospital. By the impugned judgement, the learned trial Court has sentenced the accused appellant to undergo RI for 5 years and also to pay a fine of Rs. 1000/-.

25. Considering the matter in its entirety and the background on which the incident occurred, I am of the considered opinion that ends of justice would met if the sentence is restricted to the what the accused appellant has already undergone with the enhancement of fine from Rs. 1000/- to Rs. 50000/-, which shall be paid to the legal heirs of the deceased. The accused appellant shall deposit the enhanced fine of Rs. 50,000/- to the learned trial Court on or before 15/04/2015, which the legal heirs of the deceased will be entitled to withdraw on proper identification. On default to pay the fine by the aforesaid stipulated date i.e. 15/04/2015, the accused appellant shall surrender before the learned trial to for undergo R.I. for 1(one) year.

26. Before parting with the case record it is also provided that the legal heirs of the deceased, upon proper identification, shall be entitled to compensation in terms of the provisions of OM Dated 18/10/2012 of the Government of Assam following the procedure laid down therein.

27. The Registry is directed to send down the LCR along with the copy of the judgement to the learned court below. The Registry shall also send a copy of the judgement to the jurisdictional District Legal Services Authority for doing needful at their end towards payment of compensation as directed above.