Ashadul Islam vs State of Assam

1.This appeal, under Section 374(2) of the Cr.P.C., is preferred against the judgment and order, dated 1.12.2009, passed by learned Sessions Judge,

Morigaon, in Sessions Case No. 38/2007, convicting and sentencing the accused-appellant, under Section 324 of the IPC, to undergo rigorous

imprisonment for 2 years and to pay a fine of Rs. 500/-.

The fact leading to the case is that, on 10.1.2006, the informant lodged an FIR with the Moirabari Police Station alleging that at about 12 noon the

accused-appellant had an altercation with his brother/deceased Abdul Kuddush. Thereafter, the accused-appellant assaulted and caused injuries to the

deceased with the helmet at his hand resulting ultimately in his death.

On receipt of the FIR, the Moirabari Police Station registered a case, investigated into it, collected evidence and, finally, submitted Final Report.

However, after hearing objection of the informant, the learned trial court found ground to proceed with the same, and accordingly, proceeded

resulting in the instant sessions case.

After exhausting all the required legal formalities, the learned trial court of Sessions Judge, framed a formal charge against the accused-appellant

under Section 302 of the IPC. The accused-appellant pleaded innocence to the charge, and therefore, the trial commenced.

The prosecution examined as many as 5 (five) witnesses who were subjected cross-examination by the defence. The defence examined 1 (one)

witness.

After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.PC and he is heard denying the

implicating materials brought to his notice in his such statement.

I have heard the argument advanced by the learned Senior counsel for the accused-appellant, Mr. A.M. Bora as well as learned Additional Public

Prosecutor for the state respondent, Mr. P.S. Lahkar.

I have also scanned the evidence on record.

Before entering into the merit of the case on the basis of the evidence on record, let me peep into the medical evidence, in respect of cause death

of the deceased, as adduced by PW5, the doctor who performed the post-mortem examination.

External Appearance

Healthy middle aged man of an average built.

Rigor mortis present. Abrasion of size 1â€​ x ¼ “ in the right side of forehead. Faecal matters present in anal area.

Abdomen

Walls â€" Normal

Poritoneum, mouth, phrynx, oesophagus â€" congested.

Stomach and its contents â€" Empty, healthy.

Small intestine and its contents â€" Congested, partially digested food material present.

Large intestine and its contents â€" Congested. Faecal matters present.

Liver, Spleen â€" Congested.

Kidneys â€" Congested, on cross-section both kidneys show petecheal patchy haemorrhage.

Bladder â€" Empty, healthy.

Organs of generation, external and internal â€" Healthy.

Thorax

Walls, ribs and cartilage â€" Normal and healthy.

Pleurae, larynx and trachea â€" Normal and healthy.

Right lung, left lung, pericardium â€" Congested and healthy.

Heart â€" Heart is enlarged with thickening of walls one 2†x 1†size yellowish discoloured part present in the anterior left wall of heart

surrounded by reddish zone suggestive of infarction. Heart is full of liquid blood â€" both sides.

Cranium and Spinal Canal

Scalp, skull, vertebrae â€" Healthy.

Membrane â€" Pale, healthy.

Brain and spinal cord â€" Pale, healthy.

Muscles, Bones and Joints

Injury- Nil.

Disease or deformity â€" Nil.

Fracture â€" Nil.

Dislocation â€" Nill

The opinion of the medical officer is that the death is due to shock as a result of myocardial infarction.

There is no instance in the post-mortem examination report, even to suggest remotely, that the strokes given with the helmet on the forehead of the

deceased could have caused death of the deceased in usual circumstances. The injury found in the deceased by the doctor, performing the post-

mortem examination, was lacerated in nature.

That being so, in the considered view of this court, on the basis of such medical evidence, the learned trial court appears to be right in holding that

the offence alleged does not attract the provisions of Section 302 of the IPC.

From the evidence of the non-official witnesses, it is clear, beyond reasonable doubt, that the accused-appellant assaulted the deceased on his

forehead with the helmet at his hand. Even, during the cross-examination, the defence failed to assail such fact as appeared in the evidence of the

non-official witnesses.

Now, the question is as to whether the assault inflicted with the helmet by the accused-appellant on the person of the deceased falls within the

ambit of the offence punishable under Section 324 of the IPC as has been found by the learned trial court of Sessions Judge.

The learned Sessions Judge, in paragraph-25 of the judgment has analysed the cause of death. For convenience, paragraph-25 is quoted below so

as to avoid repetition on the facts in respect of the findings recorded in the post-mortem examination report.

“The MO has specifically stated that the abrasion found on the right side of the forehead was superficial in nature and that he did not find any

internal haemorrhage consequent to the superficial injury. Organs, including bone and spinal cord were unaffected. The death was the result of

Myocardial arrest which is a disease of the heart. It was a natural death due to the disease of the heart. This opinion of the doctor was despite the

fact that he was neither a Cardiologist nor was he in any way an expert to comment on matters relating to heart or cardiac problem, but as there is no

other opinion of any other expert, this Court cannot travel beyond the Post Mortem Report wherein the MO has also mentioned in regard to the

column relating to ‘Heart’ as below :

“ 4. Heart â€" Heart is enlarged with thickening of walls one 2†x 1†size yellowish discoloured part present in the anterior left wall of heart

surrounded by reddish zone suggestive of infarction. Heart is full of liquid blood â€" both sides.â€​

The helmet used in the offence of assault in the instant case is covered by the expression “any instrument which used as a weapon of

offenceâ€​.

The defence witness examined by the accused-appellant is an Inspector of Police whose evidence is not on the facts of the case and rather on the

fact of submitting Final Report and some contradictions of some of the statements made before the police under Section 161 Cr.PC. His evidence, on

examination, is not found to affect the veracity of the prosecution version, and therefore, has no relevance.

That being so, the order recorded by the learned trial court convicting the accused-appellant, under Section 324 of the IPC, appears to have been

based on evidence on record, and therefore, the order recording conviction of the accused-appellant under the said provision of law needs no

interference.

However, so far the sentence imposed upon the accused-appellant is concerned, considering the background facts, appears to be in the higher

side. Therefore, in the considered view of this court, the sentence of rigorous imprisonment for 2 months as substantive sentence and a fine of Rs.

10,000/-, and in default of payment of fine, simple imprisonment for 15 days would meet the ends of justice.

Accordingly, the substantive sentence is reduced to rigorous imprisonment for 2 months and a fine of Rs. 500/- imposed by the learned trial court

is enhanced to Rs. 10,000/-, and in default of payment of fine, simple imprisonment for 15 days.

Accordingly, the appeal is partly allowed with the modification indicated in the foregoing paragraph.

The accused-appellant is directed to surrender before the learned trial court within 1 (one) month to serve out the sentence.

Send down the LCR along with a copy of this judgment.