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2001 Supreme(Gau) 105
GAUHATI HIGH COURT
H.K.Sema, P.G.Agarwal, JJ.
Md.Abdul Kuddus -Appellant
Versus
State of Assam -Respondent
Criminal Appeal No. 83 of 1997
Decided On : 12-04-2001
T.J.Mahanta, P.J.Phukan, N.Dutta
The main legal point established is the reliance on credible witness testimony and medical evidence to establish guilt, and the inference of intention to commit murder based on the circumstances of the incident.
Headnote:
Criminal Appeal - Offence under section 302/34 IPC - Summary of Acts and Sections: IPC Section 302, IPC Section 34 - The court discussed the evidence under IPC Section 302 and IPC Section 34, emphasizing the intention to commit murder, the role of the accused, and the plea of alibi.
Fact of the Case:
The appeal is against the judgment convicting the appellants for the offence under section 302/34 IPC. The prosecution alleged that the appellants assaulted and ultimately caused the death of a man who protested against their attack on a neighbor's house.
Finding of the Court:
The court found the evidence of the eye witnesses and the medical officer to be credible, establishing the guilt of the appellants. The plea of alibi was rejected, and the court emphasized the intention to commit murder based on the circumstances of the incident.
Issues: The issues revolved around the credibility of the witnesses, the role of the accused, and the plea of alibi.
Ratio Decidendi: The court relied on the credible testimony of the eye witnesses and the medical officer, and rejected the plea of alibi based on the proximity of the accused to the place of occurrence. The intention to commit murder was inferred from the circumstances of the incident.
Final Decision: The appeal was dismissed, affirming the conviction of the appellants.
This criminal appeal is directed against the judgment and order passed by the Additional Sessions Judge, Nagaon in Session Case No. 180 (N)/92 on 30.1.97. In the above referred Session's case as many as 12 accused persons were tried for the offence under section 302/34 IPC. On conclusion of the trial, ten (10) accused persons were acquitted. Accused Hafijuddin @ Fagu was convicted of the offence under section 302 IPC and accused Abdul Kuddus was convicted for the offence under section 302/34 IPC. Both the appellants were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000 in default further imprisonment for one (1) year. Hence the present appeal.
2. The prosecution allegation is that in an incident that took place on 19.4.91, son of Subed Ali Master was assaulted by the accused persons. Next day, the accused persons armed with deadly weapons came to attack the house of Subed Ali which is situated adjacent to the house of Azizul Haque. This act was protested by Azizul Haque whereupon the accused persons attempted to assault him. Apprehending danger, Azizul Haque ran away to save himself and he was chased by the accused persons and ultimately Azizul was gheraoed at the field. Appellant Abdul Kuddus first assaulted the deceased and thereafter on his command, the co-accused appellant Hafizuddin dealt dagger blow on the neck of Azizul Haque, who fell down on the ground and he sustained grievous injuries. The injured was removed to hospital immediately, where he succumbed to the injuries.
3. On FIR being lodged by PW1, Jalaluddin, police made usual investigation , and submitted charge sheet. So far the factum of killing of Azizul Haque on the date of occurrence is concerned, in view of the overwhelming medical and oral evidence on record, this has not been seriously disputed or challenged. PW 5 is Doctor Brojen Bora, who held the autopsy over the dead body and found the following ante-mortem injuries on the person of the deceased :
"A straight injury just above the sterno cavicular joint in the middle of 2.5 cm depth 0.5 cm width 16 cm depth directing backward and downward cutting through the structures like muscle, tracea, nerves, vessels, pleura and right lung with anti mortem clotted blood in the thoracic cavity. No other external and internal injury in seen."
The Doctor has further opined that the above injury could have been caused by any sharp cutting weapon like dagger etc and this single injury was sufficient " to cause death of a normal human being.
4. The entire prosecution case rests on the testimony of the three (3) eye witnesses namely Jalaluddin, PW 1, Md Maniruddin, PW 2 and Md Rafiqual Islam, PW 3. PW 3 is the teen aged son of the deceased, who was waterish father at the relevant time. He has deposed that on the early hours of the fateful day, the accused persons armed with lathi, dao etc raised commotion with a view to killing their neighbour Subed Master. The deceased, thereafter, intervened by stating "Yesterday you assaulted Subed Master's son and why have you come again to kill Subed Master? If you do anything today I shall stand a witness to it" Thereafter, appellant Kuddus ordered the other accused persons to catch his father and the accused persons chased his father His father then ran towards the field but he was ultimately gheraoed. PW 3 also followed him. Accused Abdul Kuddus caught hold his father's hair and dealt some blows and thereafter asked co-accused Hafizuddin to finish his father. Immediately, accused Hafizuddin took out a dagger and stabbed his father on the neck and his father fell down on the ground. The accused persons, thereafter ran away.
5. PW 1 and PW 2 who were also eye witnesses have fully supported the evidence of PW 1 and corroborated him on all material particulars. The three (3) eye witnesses were cross examined at length, but nothing has come out to show that they are deposing falsely or that they have invented story, which is false. The Medi
