Mazibur Rahman vs State of Assam

D. Biswas, J.—On conclusion of trial in Sessions Case No. 30/94 learned Sessions Judge, Morigaon convicted the Appellant Mazibur Rahman @ Pora u/s 302 IPC for causing death of his brOrs. Tozimuddin and sentenced him to undergo imprisonment for life and to fine of Rs. 2,000/-, in default, further rigorous imprisonment for two months. By the same judgment the learned Sessions Judge acquitted the co-accused Mustt. Koli Begum who was also charged along with the Appellant u/s 302 IPC read with Section 34 IPC. It may be mentioned here that the Appellant has been convicted on the independent charge framed against him u/s 302 IPC.

We have heard Shri A.K. Purkayastha, learned Amicus curiae for the Appellant and learned Public Prosecutor, Assam for the Respondent.

Shri Purkayastha at the very inception of his argument submitted that the conviction has been based primarily on the evidence of PW-1 and 3 who are closely related and the quantum of sentence imposed also needs to be reviewed since the offence allegedly committed by the Appellant does not appear to be one to be dealt with under the previsions of Section 302 IPC. Learned Counsel further submitted that the entire occurrence took place over a quarrel regarding a bicycle and, as such, the conviction may be altered to one u/s 304 Pt. I or Part II IPC, as the case may be.

PW 3 Jarina Begum, wife of the deceased who lodged the ejahar before the Officer-in-charge, Mikirbheta Police Station, alleged that on 28th June, 1993 her husband Tojimuddin was hacked on his neck by the accused Majibur with a dao and sustained grievous injuries. It has further been disclosed that accused Majibur assaulted her husband at the instigation of Mustt. Koli Begum. Further, they also together tried to assault her, but her mOrs. and younger brOrs. saved her life.

Police after completion of investigation submitted charge sheet against both the accused persons u/s 302/ 34 IPC. Before the learned Sessions Judge, ten witnesses were examined including the Medical Officer and the I.O. The defence did not adduce any evidence.

As stated earlier, the prosecution examined two eyewitnesses in this case, PW-1 is the mOrs. -in-law of the deceased. From her statement we find that she came to the house of the deceased after getting information of his ailment. It was decided to shift her son-in-law (deceased) to Bhalukguti Hospital. But a dispute arose when Mollah (the brOrs. of the deceased) had asked for the bicycle belonging to the Appellant. The deceased advised them not to quarrel and also told that he would settle the matter after he gets well. At that moment accused Koli Begum incited Pora to assault her son-in-law and immediately the Appellant brought out a dao and hacked Tomizuddin in the neck and in consequence thereof Tozimuddin''s earlobe got cut and fell down on the court yard.

PW-3 is the wife of the deceased. She has fully corroborated the statement of PW-1 insofar the allegation of assault by the Appellant is concerned. From her statement it appears that her husband was ill and she informed her mOrs. and brOrs. to assist her. It was after their arrival that the dispute arose when Molla wanted to take the bicycle belonging to the Appellant. She further told that her husband adviced Molla not to quarrel and at that moment her mOrs. -in-law (co-accused) incited the accused to ''cut him'' thereby meaning to assault her husband. Immediately, the Appellant came running and hacked her husband in the neck with a dao. She also testified that being seriously injured therefrom four of the teeth of her husband fell down.

The statement of the witness Mustt Korimun Nessa (PW-1), the mOrs. -in-law of the deceased as reproduced above, gets corroborated by the evidence of the doctor (PW-8) who had performed the postmortem examination. PW-8 Dr. Madhav Chandra Dutta in his statement described the injuries sustained by the deceased. It appears that the deceased had sustained one incised wound transversely placed 1" lateral to the left angle of the oral cavity over the cheek below left mustroid region with complete separation of the lower 1/3 of the left ear 5" x 1/2" x 2". The PW-8 further opined that the injuries were ante-mortem in nature and in his opinion the cause of death was due to shock and hammorrhage as a result of injuries sustained. The injuries described by the PW-8 clearly show that the accused had dealt a dao blow on the neck of the deceased with greater impact which had not only caused incised wound on the neck, but also fracture injuries on the mustroid region. A few teeth of the deceased also came out due to the impact of the dao below.

In view of the corroboration we get from the medical evidence to the evidence of PW-1 and 3 who implicated the Appellant as assailant of the deceased, we are of the opinion that the charge proved against the accused for causing the death of the deceased stands proved. We have also taken note of the evidence of Ors. witnesses examined by the prosecution. But we are not going to refer to the evidence of those witnesses because none of them is eyewitness to the occurrence. PW-4, PW-5 and PW-6 appear to be reported witnesses while PW-7 has been declared hostile.

The defence has cross-examined PW-1 and PW-3, but nothing could be elucited out of them in order to shake their credibility. In this context, we would now like to appreciate the argument advanced by Mr. Purkayastha that the conviction may be altered to one u/s 304 Pt.-II IPC. In the instant case the nature of the injury caused shows the impact and thrust of the blow given by the Appellant. These indicate that while dealing with the blow he had the knowledge that the act he was going to commit may cause death of Tamizuddin. Therefore, he had committed the offence of culpable homicide. Culpable homicide amounts to murder that call for imposition of penalty u/s 302 IPC unless it falls within any of the exceptions to Section 300 IPC. We have examined the provisions of law in this behalf with reference to evidence on record. We are of the opinion that the circumstances of the case and the manner in which the Appellant had caused death of the deceased do not allow any scope to bring it within any of the aforesaid exceptions. It cannot be treated as a case of provocation because the deceased did not provoke the accused. Neither there was any quarrel with the mOrs. -in-law nor with the wife of the deceased which can be construed as an act of provocation. It was a simple dispute regarding a bi-cycle. There is also no evidence to hold that the Appellant had caused murder instantaneously at the heat of the passion. Therefore, we are unable to agree with learned Amicus Curiae that this could be a case for conviction u/s 304 IPC, either Part-I or Part-II.

In the result, the appeal is dismissed.

Before parting, we record our appreciation for the valuable assistance rendered by Mr. A.K. Purkayastha, learned amicus curiae. He shall be entitled to consolidated fee of Rs. 2,500/- for arguing the case.