Md Abdul Rouf @ Kaila vs State Of Assam And Anr

Suman Shyam, J

Heard Mr. T. H. Hazarika, learned counsel appearing for the appellant. We have also heard Mr. H. Sarma, learned Additional Public Prosecutor,

Assam, appearing for the State/respondent No.1 and Mr. A. Mobaraque, learned counsel representing the respondent No.2.

The appellant in this case has been convicted under section 302/34 of the Indian Penal Code (IPC) for committing the murder of Md. Sirajul Islam

and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.2000/-and in default, to undergo rigorous imprisonment for a further

period of three months.

The prosecution case, as unfolded during the trial, is that on 21.08.2005 at about 3:30 p.m. when the victim Sirajul Islam was cultivating in the paddy

field, the accused Md. Abdul Rouf along with other accused persons had attacked him armed with lethal weapons and assaulted the victim leading to

his death.

On 21.08.2005 Md. Mainul Islam, the younger brother of the deceased, had lodged an ejahar with the Rupahihat Police Station reporting the

incident. Based on the ejahar, Rupahihat P.S. Case No.127/2005 was registered under sections 147/148/149/341/302 of the IPC. There were all

together 9(nine) persons named in the F.I.R. The matter was then taken up for investigation. During the course of investigation, the police had visited

the place of occurrence, seized one “dao†and one “fala†(a piece of split betel nut tree having sharp edge) vide M.R. No.42/05, conducted

inquest over the dead body of Sirajul Islam and thereafter, sent the body for post mortem examination. Upon completion of investigation, the

Investigating Officer (I.O.) had submitted charge-sheet against two accused persons viz., the appellant Abdul Rouf and Abdul Hashim under section

302/34 IPC. However, the I.O. had sought release of the other F.I.R. named accused persons since there was no evidence found against them. The

accused persons had claimed innocence and therefore, the matter went up for trial. It appears that during the course of the trial, the co-accused Abdul

Hashim was also murdered and therefore, the proceeding against him had abated.

The prosecution side had examined as many as 12 witnesses out of which, PW-1, Dilwara Khatoon, i.e. the minor daughter of the deceased, who

had witnessed the incident, was also examined as CW-1. After recording the evidence of the prosecution witnesses, the statement of the appellant

was recorded under section 313 of the Cr.P.C. wherein he had denied all the incriminating circumstances put to him and had claimed himself to be

innocent. The accused has, however, declined to lead any evidence in his defence.

From a perusal of the impugned judgment and order dated 17.02.2016, it appears that the learned trial court had treated the PWs-1 and 3 as the

eye-witnesses to the occurrence and has also observed that although the PW-2 did not see the actual occurrence, yet, he had seen the accused person

fleeing away from the scene of crime. Upon evaluation of the evidence adduced by PWs-1, 2 and 3, the learned trial court had observed that the

testimony of these witnesses were found to be trustworthy and hence, reliable. The learned court below has also relied upon the evidence of PW-1 to

hold that the accused Rouf had assaulted the victim by means of a “fala†and the co-accused Hashim (now deceased) had assaulted him by

means of a dao which was seized vide seizure-list Ext-2. Based on such evidence available on record, the learned trial court had found the

accused/appellant Abdul Rouf guilty of committing the murder of Sirajul Islam and therefore, convicted him under section 302/34 IPC. The learned

trial court had, however, rejected the plea taken by the accused that the present is a case of culpable homicide not amounting to murder and therefore,

the same would fall within the ambit of one of the Exceptions to Section 300 of the IPC.

By assailing the impugned judgment and order dated 17.02.2016 passed by the learned Additional Sessions Judge, Nagaon in Sessions Case

No.337(N)/06 Mr. Hazarika, learned counsel for the appellant, has argued that although the PW-1 can be treated as an eye-witness to the occurrence

yet, from the evidence on record, it is clear that the PW-3 did not see the incident and therefore, was not an eye-witness in this case. Pointing out at

the contradictions in the testimony of PWs-3 and 4 Mr. Hazarika submits that the evidence available on record points towards the fact that the

appellant had hit the deceased with a “fala†which is not sufficient to cause the nature of injuries mentioned in the post-mortem report. Urging

that the assault by the ""dao"" had been attributed by the eye-witness PW-1 only on the co-accused Abdul Hasim, Mr. Hazarika submits that there is no

evidence in this case to establish the murder charge brought against the appellant under section 302/34 of the IPC.

Mr. Hazarika has further argued that there is no evidence on record to establish common intention on the part of the accused persons, and

therefore, in the absence of independent charge farmed under section 302 of the IPC against the appellant, his conviction under section 302/34 IPC

would not be sustainable in the eye of law. Urging that there is no evidence in this case so as to establish meeting of minds between the accused

persons before the offence was committed, the learned counsel for the appellant had prayed for setting aside the conviction of the appellant and

acquitting him of the murder charge. Mr. Hazarika has made an alternative argument that this is not a case coming under section 302 of the IPC but

from the evidence on record, the conviction could at best be under section 304 Part-II of the IPC. In support of his aforesaid arguments Mr. Hazarika

has placed reliance upon the following decisions :-

(2018)12 SCC 440 [Birbal Choudhary alias Mukhiya Jee Vs. State of Bihar]

(2003) 2 SCC 266 [ Chittarmal Vs. State of Rajasthan]

Responding to the submission made by the appellant’s counsel, the learned Additional Public Prosecutor, Mr. Sarma, has argued that this is a

case based on direct evidence of PW-1 who is an eye-witness to the occurrence and she had seen the appellant and the co-accused (Abdul Hasim)

assaulting the deceased person at the same time and by using deadly weapons such as a ""dao"" and a ""fala"", which have sharp edges and are capable

of causing incised injury to the victim. Mr. Sarma submits that the testimony of other witnesses examined by the prosecution side also establishes the

fact that the incident took place in the paddy field and at a time when the PW-1 was with her father (deceased) sowing paddy in the field. Mr. Sarma

submits that this is a clear case of murder having been committed by the accused persons with sufficient pre-meditation and therefore, this appeal is

liable to be dismissed.

Mr. H. Sarma, learned Additional Public Prosecutor, Assam, further submits that the evidence available on record clearly indicates that both the

accused persons had assaulted the victim on the basis of a pre-arranged plan and therefore common intent as defined under section 34 of the IPC can

be inferred from the materials on record.

Mr. Mobaraque, learned counsel representing the Informant/ respondent No.2 has adopted the arguments advanced by the learned APP, Assam

and submitted that the prosecution had been able to prove the charge brought against the appellant beyond all reasonable doubts. As such, there is no

merit in this appeal and the same be dismissed.

We have considered the arguments advanced by the learned counsel for the parties and have also gone through the materials available on record.

As noticed above, PW-1 is the star witness in this case. There is no controversy at the bar that PW-1 is an eye witness to the occurrence. It

appears that at the time when her evidence was recorded by the court, PW-1 was a minor aged about 12 years old. We find from the record that the

learned trial court had recorded its satisfaction as to whether the witness was capable of giving rational answers to the questions put to her and on

recording such satisfaction, had gone on to record her evidence.

In her testimony, PW-1 has clearly stated that the incident took place at around 3:00 pm in the field. At that time, she had gone to the field along

with her father to sow paddy. The witness has deposed that a tractor was being used to plough the land near their field. At that time, her father was

cleaning the jungle with a 'naliakata dao'. The driver of the tractor had taken the 'dao' from her father and cleaned the mud sticking in the iron wheel

of the tractor. Around that time, the accused Abdul Rouf alias Kaila came there with a piece of split betel nut tree (fala) and struck her father with

that. When her father tried to run away from that place, Abdul Hasim had hacked him with a dao and her father fell down on the field. She then

began to shout. Her paternal uncle Imdadul Haque arrived there and lifted her father from the plantation where he was lying. Hearing her cries, her

paternal uncle Mainul Haque had also arrived there. PW-1 has also stated that Kaila and Hashim ran away from the field and her paternal uncles

Imdadul and Mainul then carried her father to the house of her father’s elder brother Kobbas Ali. She later told the incident to her paternal uncle

Imdadul. According to PW-1, her father had sustained injuries in both legs, both hands and on the ear. He died about an hour after the incident. PW-1

had also stated that she was not assaulted and that the police did not record her statement. During her cross-examination, the testimony of the PW-1

could not be shaken. Be it mentioned here that as CW-1, when a question was put to this witness by the Court, she had categorically stated that she

saw the incident and she was with her father.

PW-2, Mainul Islam, is the informant in this case. He is also the younger brother of the deceased. In his deposition PW-2 has stated that the field

in which Sirajul Islam was working was about 100 nals away from his house. On the date of occurrence at about 3/3:30 p.m. he heard Dilwara (PW-

1) was crying and ran to the field. Faizul Islam (PW-4) and Imdadul Islam (PW-3) went ahead of him. On his arrival he saw accused Rouf and Hasim

running after assaulting his elder brother. Going near his elder brother (deceased) he saw injuries in his hands, back and head. He then asked his

brother about the incident. Then his brothers Imdadul, Faizul and Dilwara told him that Rouf and Hasim had assaulted his elder brother.

PW-3, Imdadul Islam, is a brother of the deceased and he has deposed that on the day of the occurrence at about 3/3:30 p.m. he was sowing

paddy some 10 nals away from Sirajul’s land. At that time, Sirajul's daughter, who had been with him, raised a commotion. Hearing her cries, he

looked in that direction and saw accused Rouf and Hasim chasing Sirajul towards the east beating him in the process. PW-3 has deposed that the

accused persons were assaulting Sirajul with a dao and that accused Rouf and Hasim had daos in their hands. According to PW-3, the accused

persons had taken Sirajul to a distance of 30 nals beating him all the way with dao and then Sirajul fell down in Mantaz Ali’s cultivation. He then

rushed near Sirajul and saw injuries in his hands, neck, chest and head and blood was flowing out of those wounds. He tore his shirt and tied his

wounds with that. Hearing the commotion raised by him and other people the accused fled away. Hearing the commotion, his brother Mainul and

Faizul arrived and took Sirajul to Kobat Ali’s house. During his cross-examination, the testimony of this witness also could not be shaken.

PW-4, Faizul Islam, is another brother of the deceased and he has deposed that on the day of the occurrence, at around 3:30 p.m. he had heard a

commotion in the field. At that time he was in his house located about 100 nals away from the field. Hearing the commotion he went to the cultivation

(field) and then found his brother Sirajul Islam lying in the cultivation in an injured state. PW-4 has deposed that he saw Abdul Hasim and Abdul Rouf

running away to their own houses from the place of occurrence and he had also seen a 'dao' in Abdul Rouf’s hand and a 'lathi' in Hashim’s

hand. On his arrival at the place of occurrence he had seen Mainul Ismal (PW-2) and Imdadul Islam (PW-3) there and that he had seen injuries in his

brother’s hand, back of the knees and head. When he asked, Sirajul (victim) told him that Abdul Rouf and Hashim had assaulted him. Then they

took Sirajul to Kobat Ali’s house where he died.

Kobat Ali (PW-5) has deposed that on the day of the incident he went to the market and on returning therefrom, he saw Sirajul was lying in his

courtyard in an injured state. On being asked by him the elder brother of Sirajul told him that accused Abdul Rouf and Abdul Hashim had put Sirajul in

his courtyard.

PW-6 Dr. Keshabananda Goswami had examined the amputated fingers of the deceased Sirajul Islam and opined that the amputated fingers were

of Sirajul Islam. This witness had also conducted the post mortem examination on the body of the deceased. W find that the Dr. Keshabananda

Goswami has been examined twice, once as PW-6 and again as PW-11. The Doctor has exhibited the post-mortem report Ext-3 and also proved the

same. As per the deposition of the doctor (PW-11), the following injuries were found in the body of the deceased :-

“On examination, I found the following :-

Dead body of average built adult, 32 years, male. Eyes and mouth half open. Rigor mortis present.

Injuries :-

1) Incised vertical wound of left hand Palmer aspect. 4 inch x 2 inch x 2 inch exposing bone.

2) Traumatic Amputation of right index and right ring finger at the level of middle phelenx. Margin of the amputated stamp is regular.

3) Transverse incised would post aspect of left leg appes 1/3rd. Size 6 inch x 4 inch x with division of (fracture of) upper end of the left tibia

and left popular artery and veins along with soft tissue at the level of the wound.

4) Two oblique incised wound medial aspect of left thigh lower 1/3rd and upper part of right leg (medial aspect). Size â€" 4 inch x 2 inch x

3 inch and 3 inch x 2 inch x 2 inch.

Ante mortem clotted blood present in the wounds.

In my opinion, cause of death is due to shock and haemorrhage as a result of injuries.

Ext-4 is the Post Mortem report and Ext-4(1) is my signature.â€​

The doctor has opined that all injuries are incised wounds caused by sharp weapon.

PW-7 Shahira Khatun is a neighbour of the accused and she has deposed that on the day of occurrence, she had seen Hashim going with a 'dao'

in his hand. During her cross-examination, PW-7 had stated that she had not seen the incident but had seen Hashim running with a dao and he had

thrown the dao in his land situated near her house.

PW-8 Mainuddin, PW-9 Fakrul Islam and PW-10 Jaynal Abedin are the villager who had not seen anything but had heard about the incident from

others. Their evidence is all “hearsayâ€​ and hence, is not of any significance in this case.

The I.O. in this case Sri Munindra Kumar Das was examined as PW-12. He has deposed before the court that at the time of the incident, he was

posted at Rupahihat Police Station as S.I. On 21/08/2005, one Mainul Islam (PW-2) had lodged an F.I.R based on which, Rupahihat P.S. Case

No.127/ 2005 was registered. He was entrusted with the task of carrying out investigation in the case. PW-12 had stated that he had visited the place

of occurrence, found the dead body in the house of his brother Imdadul Islam, conducted inquest over the body and sent the same for post mortem

examination to Civil Hospital, Nagaon. PW-12 has further stated that he had seized one 'dao' and one 'Fala' from the house of Abdul Hashim on being

identified by the informant and his brother Imdadul Islam. Then he had examined the witnesses at the place of occurrence and then arrested accused

Abdul Rouf @ Kalia and Abdul Hashim and forwarded them to the court on 13/09/2005. PW-12 had proved the seizure list Ext-2.

During his cross-examination, the PW-12 had stated that PW-1 Dilwara Khatun did not state before him that she went with her father to the

paddy field for paddy cultivation. She also did not state before him that her father was ploughing the paddy land with a tractor or that on hearing hue

and cry, her uncle came and lifted her father but she stated that her uncle came.

PW-12 had also stated in his cross-examination that PW-3 Imdadul Islam did not state before him that at the relevant time he was cultivating

paddy at a distance of about 10 nals form the place of occurrence or that Rouf and Hashim were chasing Sirajul towards east by inflicting dao blows.

However, PW-3 had stated before him that Hashim was armed with a dao and Rouf had inflicted blows upon Sirajul by means of a Fala. He had also

stated that PW-4 did not state before him that Rouf was armed with a dao and Hashim with a Lathi or that he went to the place of occurrence on

hearing hue and cry of Sirajul and Mainul or that Sirajul had told him that Rouf and Hashim had assaulted him.

During the course of argument, Mr. Hazarika, learned counsel for the appellant, has submitted in all fairness that he is not denying that there was

assault made by his client upon the victim but his basic contention is that there is no evidence in this case to establish ingredients of section 302 of the

IPC.

As noticed above, PW-1 is an eye-witness in this case and the appellant’s counsel has not been able to impeach her testimony. PW-2 has

clearly stated that he had heard Dilwara (PW-1) crying and then he ran to the field at the time when the incident had occurred. The version of PW-2

finds due corroboration from the testimony of PW-3 who had also deposed that on reaching the field he saw the victim’s daughter with him. From

the above evidence available on record, we are convinced that PW-1 was present in the field along with her father when the incident took place and

she had witnessed the incident. We also find that the version of PW-1 is consistent and therefore, reliable. PW-1 has stated that accused/appellant

Abdul Rouf had inflicted injury upon her father with a “fala†as a result of which, he had sustained injuries in his hands, leg and ear. Injury report

of the victim, as laid down by PW-6, who had identified the three amputated fingers, also supports the said version of the PW-1. We do not find any

cogent reason to disbelieve the PW-1.

Coming to the testimonies of PWs-2, 3 and 4, it is no doubt correct that PW-2 has clearly mentioned in his deposition that PWs-3 and 4 went to the

place of occurrence ahead of him. However, from the evidence of PW-4 it appears that this witness had seen PW-2 and PW-3 on his arrival at the

place of occurrence. To that extent there is some contradiction in the version of these witnesses. However, what is to be noted herein that the

statements made by these witnesses do not materially differ with the eye-witness account of the PW-1, who has clearly mentioned about the

involvement of the appellant and the co-accused Hashim in assaulting her father. Moreover, it appears that the PW-2 had seen the occurrence initially

from a distance and as such some discrepancy in the description of the occurrence given by this witness is possible. However, such discrepancies in

the testimonies of PWs-2, 3 and 4, in our opinion, does not take away anything from the prosecution story that it is the appellant and the co-accused

Hashim who had arrived at the place of occurrence on the day of the incident and assaulted the victim with a “dao†and a “fala†thereby

inflicting serious injuries upon him.

Let us now deal with the submission made by Mr. Hazarika that there was no common intention as per a pre-arranged plan on the part of the

accused persons to assault the victim and to that extent this case does not come under the purview of section 34 of the IPC.

In Suresh vs. State of UP, reported in (2001) 3 SCC 673, the Supreme Court has observed that section 34 of the Indian Penal Code recognises the

principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another

person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The Observations made in

paragraph 40 is extracted here-in-below for ready reference :--

Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused

persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other

provisions of the Code. The word ""act"" used in Section 34 denotes a series of acts as a single act. What is required under law is that the

accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded

themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by

mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court

can, with judicial servitude, hold that the accused must have pre-conceived result that ensued in furtherance of the common intention. A

Division Bench of the Patna High Court in Shatrughan Patar & Ors. v. Emperor [AIR 1919 Patna 111] held that it is only when a court with

some certainty hold that a particular accused must have pre-conceived or pre-meditated the result which ensued or acted in concert with

others in order to bring about that result, that Section 34 may be applied.â€​

In the case of Balu alias Bala Subramaniam and another vs. State (UT of Pondicherry), reported in (2016) 15 SCC 47,1 the following observations

have been made by the Supreme Court in paragraphs 14 and 15 :-

“14. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the

entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of the

origin of the occurrence, the manner in which the accused arrived at the scene and the concert with which attack was made and from the

injuries caused by one or some of them. The criminal act actually committed would certainly be one of the important factor to be taken into

consideration but should not be taken to be the sole factor.

Under Section 34 IPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to

bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and

circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from

the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the

conclusion whether the accused had a common intention to commit an offence with which they could be convictedâ€​.

Summing up the law on applicability of section 34 of the IPC, in a recent decision of the Supreme Court rendered in the case of Birbal Choudhary

alias Mukhiya Jee Vs. State of Bihar reported in (2018) 12 SCC 440 it has been observed that common intention under section 34 denotes action- in-

concert and necessarily postulates the existence of a pre-arranged plan. In the said decision, the Supreme Court has quoted with approval, the

observation made in the case of Mohan Singh vs. State of Punjab reported in AIR 1963 SC 17 4wherein by quoting the decision of the Privy Council

in the case of Mahbub Shah vs. King Emperor [1945 SCC OnLine PC 5] it had been observed that common intention within the meaning of section 34

implies a pre-arranged plan and in order to convict the accused of an offence applying the section, it should be proved that the criminal act was done

in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference

deducible from the circumstances of the case.

In the case of Chittarmal Vs. State of Rajasthan reported in (2003)2 SCC 266 the Supreme Court, while examining the requirement of section 34

of the IPC as different from section 149 of the IPC, has held that the overt act and active participation is indicative of common intention of the

persons perpetuating the crime.

In the case in hand, we find that there is reliable evidence available on record to suggest that the accused Rouf and Hashim had not only reached

the place of occurrence at the same time but they were also together inflicting blows upon Sirajul. The evidence of PWs 1, 2, 3 and 4 goes to show

that both the accused persons had fled the scene at the same time when the victim had fallen on the ground after the assault was completed. Usage of

sharp weapons such as a ‘dao’ and ‘fala’ also goes to show that the accused persons were aware of the consequences that such assault

on the victim might lead to.

It has also come out from the testimony of PW-1 that the appellant Abdul Rouf alias Kaila had struck her father with a piece of split betel nut and

when her father tired to run away from the place, then Hashim hacked him with a dao after which her father fell down on the field. From the above

evidence brought on record by the prosecution side we have no doubt in our minds that the appellant Abdul Rouf and the co-accused Hasim (since

deceased) had shared a common intention to assault the victim and acting in concert, they had committed the offence as per a pre-arranged plan. For

the above reason, we are unable to accept the submission of Mr. Hazarika that there is no evidence in this case to infer common intention on the part

of both the accused persons.

This brings us to the next issue which is as to whether, the present is a case for conversion of the conviction of the appellant from section 302 IPC

to one under section 304 Part-II of the IPC. From the medical evidence brought on record in the form of the post-mortem report, we find that none of

the injuries were in the vital organs of the body. Rather, from the injuries mentioned in the post-mortem report Ext-3, we find that all the injuries were

in his hand, leg and in the thigh.

From the evidence on record, we find that the appellant had assaulted the victim in his hands and legs with split betel nut tree. Although PW-1 had

stated that her father was assaulted in his ears also, the post-mortem report does not mention of any injury in the ear. The PW-1 has ascribed the role

of hacking the victim with a dao to the co-accused Hashim and not to the appellant and there is no cross-examination on this point. From the evidence

brought on record by the prosecution side, it appears that the appellant had assaulted the victim with a “fala†but since such assault was made in

the hands and legs of the victim, hence, it can be safely presumed that there was no intention on the part of the appellant to cause homicidal death to

the victim. If that be so, we are convinced that although the appellant might have the knowledge that the assault might result into the death of the

deceased but there was no intention to kill. In view of the above, we find force in the submission of Mr. Hazarika that the present is a case that would

come within the sweep of section 304 Part-II of the IPC.

We accordingly, convert the conviction of the appellant to one under section 304 Part-II of the IPC and sentence the appellant to undergo rigorous

imprisonment for a period of 10 (ten) years. The fine imposed by the learned court below shall, however, remain undisturbed.

It is made clear that the period of detention undergone by the accused/appellant shall be set off against the sentence of imprisonment under section

428 of the Cr.P.C.

The appeal stands partly allowed.

Send back the LCR.