Partly allowed

MD Ibrahim Ali v. the State of Assam and Anr.

Gauhati HC5 Apr 2018Crl.A./203/2015

Case brief

AI extract

What is this about?

The Gauhati High Court allowed the appeal partly, holding that the appellant was guilty of culpable homicide not amounting to murder under Section 304-II IPC instead of murder under Section 302 IPC. The court reduced the sentence from life imprisonment to seven years rigorous imprisonment due to the use of a blunt weapon rather than a sharp edge.

What did the court decide?

Conviction altered from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304-II IPC); sentence reduced to 7 years rigorous imprisonment.

MD Ibrahim Ali Vs the State of Assam and Anr. — Murder and Culpable Homicide | Gauhati HC (2018)

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Page No.# 1/5

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GAHC010019042015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A. 203/2015

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1:MD IBRAHIM ALI

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S/O LT. JAINUDDIN @ JAYNAL ABEDIN VILL- KALIADINGA PAM P.O. KALIADINGA P.S. JURIA DIST. NAGAON, ASSAM

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VERSUS

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1:THE STATE OF ASSAM and ANR

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2:MD. AKBOR ALI

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S/O LT. MUSLEMUDDIN VILL- PAM KALIADINGA P.O. KALIADINGA P.O. KALIADINGA P.S. JURIA DIST. NAGAON

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ASSAM

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Advocate for the Petitioner : MR.S KHAN

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Advocate for the Respondent :

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BEFORE

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HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH

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HON’BLE MR. JUSTICE MANOJIT BHUYAN

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For the Appellant : Mr.MH Choudhury,

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learned Amicus Curiae

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Page No.# 2/5

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For the Respondents : Mr. H Sarma, learned Additional Public Prosecutor, Assam Date of hearing & Judgment : 5.4.2018

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JUDGMENT AND ORDER

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(Ajit Singh, C.J.)

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Appellant - Ibrahim Ali - has been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. By the same judgment, the trial court has acquitted two co-accused persons, namely, Abdul Kadir and Mannas Ali. There were two more accused persons, namely, Omar Ali and Anar Ali. Omar Ali after obtaining bail during trial has absconded, whereas Anar Ali has been sent to the Juvenile Justice Board. The present appeal is therefore filed by only Ibrahim Ali.

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The victim of the incident was Jalaluddin, aged about 35 years.

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According to the prosecution case, Jalaluddin and the appellant were cousin and they resided in the same locality as neighbours at Mouza Juria, District Nagaon, falling within the jurisdiction of Police Station Juria. On 30.7.2004, at about 4 PM, when Jalaluddin was going towards his pond, he was intercepted by Omar Ali, Mannas Ali, Anaruddin, Abdul Kadir and the appellant. They were also armed with weapons like axe, dao and lathis. On the exhortation of Abdul Kadir, all of them made a murderous assault on Jalaluddin with their respective weapons and caused multiple grievous injuries to him. On hearing the out-cry of Jalaluddin, his wife Halima Khatoon (PW-3), brother Habibur Rahman (PW-1) and sister-in-law Afia Begum (PW-6) rushed to the place of occurrence to save him, but the assailants ran to assault them also, and they somehow managed to escape by retreating and taking shelter inside their houses. After sometime, when the assailants dispersed from the scene of occurrence, Habibur Rahman and Halima Khatoon along with one Rafiqul went to Jalaluddin and carried him in an injured state to the Nagaon Civil Hospital from where he was sent to the Gauhati Medical College and Hospital. At the Gauhati Medical College and Hospital, Jalaluddin was declared as brought dead. First Information Report Exhibit 1, of the incident was lodged by another brother of Jalaluddin, namely, Akbar Ali (PW-2) at Juria Police Station wherein he named all the assailants including the appellant. The Station Officer - Budheswar Khaklari (PW-11) of the Police Station then immediately rushed to the place of occurrence and recorded the statements of witnesses. He even searched for the assailants, but since all of them had fled, no arrest could be made. Budheswar Khaklari sent the dead body of Jalaluddin for post mortem examination. Dr. Kanak Chandra Das (PW-9), the then visiting surgeon in the Department of Forensic Medicine of the Gauhati Medical College and Hospital conducted the post mortem examination on the dead body of Jalaluddin. He found 4(four) wounds of various sizes viz. one over left cheek below left eye; second over left eye eyebrow; third on nose with underneath nasal bone

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Page No.# 3/5

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fracture and fourth lacerated injury on the scalp, over parietal bone with underneath fracture of parietal bone. According to him, death was due to head injury sustained as described, which was ante-mortem and caused by blunt weapon. His post mortem examination report is Exhibit-4.

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The appellant, Omar Ali and Anar Ali were arrested on 8.8.2004 from another village. Pursuant to the memorandum statement of Omar Ali, the police seized one axe in the presence of witnesses - Akbar Ali, Halima Begum, Abdul Hasim (PW-7) and Jalaluddin (PW-8). Later, remaining assailants Abdul Kadir and Mannas Ali were also arrested. After completing the investigation, the police submitted charge sheet against all the assailants, whereafter they were tried for offences under Sections 147 and 302/149 of the Indian Penal Code. As mentioned above, the trial court has acquitted Abdul Kadir and Mannas Ali and sent Anar Ali to the Juvenile Justice Board. Omar Ali is reported to be still absconding.

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During trial, the appellant abjured his guilt and pleaded innocence. He also stated while being examined as an accused under Section 313 of the Code of Criminal Procedure that he was praying namaz when the occurrence took place. He even examined Abdul Kadir (PW-1), Maulabi Md. Suleiman Ali (DW-1) and Abbas Ali (DW-2) as defence witnesses to prove that he was in the mosque and was performing ‘Ajan’. However, the trial court relying upon the evidence of eye-witnesses namely Habibur Rahman, Akbar Ali and Halima Khatoon, convicted and sentenced the appellant as aforesaid.

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It is argued on behalf of the appellant that the evidence of the eye witnesses is not reliable as they are inconsistent and contradictory. Besides, since there is sufficient defence evidence to prove that the appellant was performing Ajan at the time of the offence, the trial court committed an illegality in holding him guilty and as such, he may be acquitted. The learned Public Prosecutor on the other hand submitted that the evidence of the eye witnesses cannot be discarded as those are consistent and trustworthy and the evidence of the defence witnesses are concocted and hence there is no illegality in the impugned judgment and order

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Halima is an important eye witness examined by the prosecution. She has deposed that on the day of occurrence, when Jalaluddin was going through the road in front of the house of Mannas Ali, then Omar Ali and Anar hacked him. According to her evidence, the appellant also along with Omar assaulted Jalaluddin with an axe whereas Anar assaulted him with a lathi. During her crossexamination, Halima maintained that she witnessed the occurrence from a distance of ¾ nal and saw the appellant, Anar and Omar Ali assaulting Jalaluddin and Mannas was standing nearby. During investigation also, she stated before police that the appellant along with Omar Ali assaulted Jalaluddin with an axe causing him serious injuries. Halima consistently maintained throughout her evidence that the appellant and Omar dealt the axe blows to her husband Jalaluddin and her testimony did not shake during her cross-examination, too. Another eye witness examined by the prosecution is Habibur Rahman. He has deposed that when he heard the cries of Halima, he went to the place of occurrence

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and saw Omar Ali giving blows on the head, back and other parts of the body of Jalaluddin with an axe. He has also deposed that when he reached the place of occurrence, he saw the appellant standing there along with Omar and Anar and seeing him, they chased him. He, however, did not say that the appellant assaulted and caused any injury to Jalaluddin. But merely for this reason, the evidence of Halima that appellant also assaulted Jalaluddin cannot be disbelieved , more particularly, when his presence at the time of incident and also his conduct of chasing away both Halima and Habibur when they tried to intervene is fully established. Otherwise also, the evidence of Halima and Habibur corroborate each other on material particulars. Therefore, we do not find any ground to disbelieve the evidence of both Halima and Habibur. The testimony of Halima is also supported by the post mortem examination report.

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The evidence of both Habibur and Halima is further corroborated by Habibur’s wife Afia, who has deposed that when she rushed to the place of occurrence with Habibur, she found Jalaluddin lying injured on the ground and the appellant asked the other assailants to catch them too and Anar came charging with a lathi towards them. This piece of evidence fully corroborates the evidence of Habibur and Halima that the appellant was present at the place of occurrence when Jalaluddin was assaulted. Not only this, the appellant chased Habibur and Halima. Therefore, his involvement in the offence as well as his presence in the place and time of occurrence is proved beyond reasonable doubt.

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So far as the evidence of Akbar Ali (PW-4) is concerned, we are of the view that he was not present at the time and place of occurrence. Though, he deposed that he found Jalaluddin lying on the ground with injuries on his head, eye and back side of the ear and blood was oozing out from his injuries and also met Omar, Mannas, Anar and the appellant near their fishery and they fled seeing him, he admitted during his cross-examination that he did not see the occurrence. He reached the place of occurrence after the occurrence took place. But, even his presence there is doubtful since Habibur admitted during his cross-examination that Akbar lived in Laokhowa and he could learn later on that Akbar came to visit the place of occurrence at Kaliadinga after the occurrence took place. Halima also admitted that Akbar came to the place of occurrence after the incident was over. Likewise, Afia also admitted during her cross-examination that Akbar was not at home on the date of occurrence and he reached at night. Therefore, it can be safely held that Akbar was not an eye witness and as such, his any testimony implicating the appellant is completely discarded.

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The appellant took the plea of alibi in defence. He adduced defence witnesses to prove that he was performing ‘Ajan’ at the time of occurrence. Abdul Kadir, Moulabi Md. Suleiman Ali and Abbas Ali have deposed that the appellant was performing ‘Ajan’ at the time of occurrence and when they heard the hue and cry in the house of Mannas, they came out and discovered that Jalaluddin was assaulted. At that time, the appellant also came out of the Mosque with them. But, interestingly, in his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant merely stated that at the time of occurrence, he was offering namaz. He is totally silent as to at what place he was offering namaz and also did not say that the defence witnesses were with him. The defence witnesses

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also did not divulge before the police during investigation that the appellant was with them in the Mosque offering namaz. As such, we do not believe the evidence of the defence witnesses. It is settled position of law that the accused is required to offer explanation against each and every incriminating evidence appearing against him and if the explanation is plausible, then the same may be accepted to his benefit. But at the same time, if he chooses to offer a false explanation, then the same would be treated as an additional circumstance against him. In the instant case, his explanation is too evasive to be probable. Further, the same is not supported by any cogent defence evidence. Therefore, we have no hesitation but to hold that the appellant is one of the perpetrators of the crime.

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However, we find that the medical evidence suggests that Jalaluddin sustained lacerated injuries due to assault made by blunt weapon. Hence, we are of the view that the sharp edge of the axe was not used for making the assault which would go to suggest that the appellant along with other assailants had no intention to cause death of Jalaluddin although they had knowledge that such assault may result into his death. Therefore, we are of the considered view that the appellant is guilty for committing an offence under Section 304-II/34 of the Indian Penal Code and not under Section 302/34 of the Indian Penal Code as held by the trial court. Accordingly, the appellant is held guilty for committing an offence under Section 304-II/34 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for the period of 7(seven) years with fine and default stipulation, as ordered by the trial court.

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The appeal is accordingly partly allowed and the conviction and sentence of the trial court is altered to the extent as indicated above.

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Sd/Sd/-

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JUDGE CHIEF JUSTICE

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Comparing Assistant

MD Ibrahim Ali v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

MD Ibrahim Ali v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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