Crl.A. 82/2008 BEFORE HON’BLE MR JUSTICE AMITAVA ROY HON’BLE MR JUSTICE CR SARMA J UDGMENT AND ORDER (ORAL) ( Amitava Roy,J) This appeal witnesses a challenge to the judgment and order dated 13.9. 2000 passed by the learned Sessions Judge, Morigaon in Sessions Case No.16/1997 whereby the appellants herein have been convicted under Section 302 of the Indi an Penal Code ( for short, hereafter referred to as ’IPC’) and sentenced to suff er imprisonment for life and also to pay fine of Rs.1000/- each , in default, to undergo R.I. for further six months. The appellants are in jail since the above decision. 2. I have heard Mr HRA Choudhury, Senior Advocate assisted by Mr A Mati n and Mr IA Hazarika, Advocates for the appellants and Mr KA Mazumdar, learned P ublic Prosecutor ,Assam. 3. On a FIR lodged on 13.4.1995 by one Md Chand Mia with the Officer-in-C harge, Mayang Police Station alleging that the appellant No.2 had inflicted dag ger injury in the chest of one Md Nur Alam resulting in his death and further t hat the appellant No.1 and one Md Akabor Ali had assaulted one Md Hasen Ali, May ong PS Case No. 23/1995 under Sections 302/325/34 IPC was registered. In course of the investigation, Md Akabor Ali absconded. On completion of the investigat ion, however, charge-sheet was laid against the accused appellants under Sectio ns 302/34 IPC. The case being triable exclusively by the Court of Sessions , it was committed to the court of the learned Sessions Judge, Morigaon. Charge was framed against the accused appellant as above to which they pleaded not guilty and claimed to be tried. 4. In course of the trial that followed, the prosecution examined eight witnesses including the doctor who had performed the postmortem examination as well as the Investigation Officer. The statements of the accused appellants wer e recorded under Section 313 Cr.P.C. The defence did not adduce any evidence. Th e impugned judgment and order followed. 5. Mr Choudhury has urged that the evidence of the so called eye wi tnesses PWs 2 and 5 being contradictory on material particulars, the prosecutio n had failed to prove the charge against the appellants accused and thus thei r conviction and sentence is unsustainable in law. Without prejudice to the abo ve, the learned Senior counsel has contended that even assuming that some creden ce to the said witnesses vis a vis actual occurrence can be attributed , in the facts and circumstances of the case , as the incident admittedly was prece ded by a quarrel between the parties, no intention of murdering the deceased ca n be ascribed to the appellants accused and therefore ,their conviction under Section 302 IPC by no means can be sustained. In support of his contention, Mr Choudhury has drawn the attention of this Court to the fact that the deceased was inflicted only one stab injury which according to him negated any murderou s intention of the accused appellants. The learned Senior counsel therefore ur ged that without prejudice to the plea of the innocence of the accused appella nts their conviction be altered to one under Section 304 Pt II IPC and the sen tence be reduced to the period already undergone by them. 6. Mr Mazumdar in reply has urged that the evidence of the eye wit nesses PWs 2 and 5 being convincingly probative of the fact that the appellan ts accused with an intention had caused the murder of the deceased , no interfe rence with the impugned judgment and order is called for. He has dismissed the plea of want of intention of the appellant accused, contending that even assumin g that there was a quarrel between the parties preceding the same, the same b y no means was enough to entitle the accused appellants to avail the benefit of any exception under Section 300 of the Indian Penal Code. 7. The rival submissions to be appropriately appreciated , the eviden ce on record needs to be marshalled. 8. PW 1, , Taslimuddin, Gaonburah of the village concerned is not an ey e witness of the incident .He stated that he was told by Chand Miah PW 3 and Ha sen Ali, PW 2 that the appellant accused Saha Ali had stabbed the deceased wit h a dagger . PW 3 Chand Mia has also claimed to have been apprised of the inci dent by PW 2 Hasen Ali. He however, is the informant and has proved the F.I.R. , Ext.1 and his signature Ext. 1(1). 9. PW 5, Babar Ali, a cousin brother of the deceased stated that bef ore the incident he(deceased) had visited his paddy cultivation on the land near the road about ¾ nals from him(witness).The appellants accused along with Md A kabor Ali then had a quarrel with the deceased. According to the witness at th at point of time Hasen the younger brother of the deceased was harrowing their field nearby. He stated that the appellant accused Safar hit Hasen on his head with a stick and he fell down. Soon thereafter the appellant accused Safar hel d the deceased and the appellant accused Saha kicked him and inflicted a blow i n his chest with a dagger which he pulled out immediately thereafter. Being inju red Nur Alam fell down on the paddy field and the accused persons fled away the refrom. 10. The defence in cross examination of this witness sought to elic it some contradictions on his part vis a vis the statement made by him before the police. It was even suggested on behalf of the defence that at that point o f time, the accused appellant Saha Ali was away to Shillong. 11. PW 6, Tota Mia, a cousin brother of the deceased affirmed to have seen the appellant accused Akabor hitting the deceased with a sickle on the ro ad following which the appellant accused Safar Ali kicked the injured and ran aw ay. In cross examination of this witness claimed to have seen the occurren ce from the land located about a distance measuring one bigha therefrom. He als o stated to have seen the appellant accused Safar Ali dealing a blow on Hasen Ali with a lathi. 12. PW 7, Mannas Ali in his examination in chief, referred to an alterca tion between the accused appellant Akabor and the deceased near his land which he at that point was harrowing. Following the altercation, according to this wi tness , the accused Akabor thrust the sickle in his hand in the chest of the dec eased. He stated that seeing this, Hasen Ali rushed to the place of occurrence. This witness was declared hostile and was confronted with the statement made by him before the police in course of the investigation that the appellan t accused Safar had held Nur Alam and pressed him down and that accused appell ant Safar Ali had thrust the dagger in his chest. 13. PW 8, Nasiruddin Borlaskar, Investigating Officer narrated the steps taken by him in course of the investigation. 14. The elaboration of the statements of the prosecution witnesses un der Section 161 Cr.P.C. not being very material is avoided. 15. PW 2 , who claimed himself to be an eye witness to the incident stated that on the date of the occurrence at 3.30/4 p.m. while he was harrowin g his field , the deceased had gone to the house of his uncle Jaban Ali to bring ’Chinadhan’(China paddy). The deceased who had gone on a cycle kept it near th e land on which he(witness) was harrowing and went towards further west to see his cultivation. The witness further stated that soon thereafter Nur Alam retur ned with tears in his eyes and when asked , he told that the accused appellant S afar had punched him. The witness stated about the presence of the appellant acc used Safar Ali and one Akabor Ali also at the place of occurrence. On his inter vention to dissuade them from fighting , the appellant accused Safar attacked t he witness with a lathi on his head and he fell down. After rising from the grou nd, this witness saw that the accused Akabor was holding Nur Alam from behind to be joined by appellant accused Safar. While Nur Alam was held by accused S afar, accused Saha stabbed him in his chest with a dagger and Nur Alam fell dow n on the ground being injured and the accused persons fled away therefrom. The w itness stated to have narrated the incident to Chand Mia, Mannas, Tota Mia and others. In cross examination, this witness affirmed that there was a quarrel bet ween Nur Alam and the accused appellant Safar and Akabor about 10 minutes prior to the occurrence. 16. PW 4, Dr Mabidur Rahman in course of his examination in chief, m entioned about the following injuries detected by him in course of the postmort em examination of the dead body. According to him, death was caused due to Haemo rrhage and shock from the injuries sustained. Thorax- Walls, ribs and cartilages- There was a sharp cutting wound a t the left thorasic wall starting from neck towards the axilla, size 1 ‰ in l ength and 4 depth. There was blood discharge. Pleurae- Right pleurae healthy. Left side there was sharp cutting injury. Larynx and trachere- healthy, pale. Right lung- healthy, pale. Left lung- Haemothorax with penetrating injury to the left lung. Pericardium-healthy, pale. Heart-healthy ,empty. Vessels- healthy. Abdomen- Walls- healthy, Peritoneum-healthy, Pale. Mojth, pharynx, oesophagus- Serosangunious discharge from mouth. Stomach and its Contents- Contained semisolid food materials. Small and large intestine- healthy, distanded. Liver- healthy , pale. Spleen- healthy, pale. Kidneys- healthy, pale. Bladder -empty. Organs of generation, external and internal-healthy. Muscles, bones and joints- Injury already described. Disease or deformity- Nil. Fracture- There was fracture at the 2nd rib(left side) at the costocondral junct ion. Dislocation- Nil. More detailed description of injury or disease- A dead body of male boy of 18 years having sharp cutting injuries at the chest wall with Heamothorax. The findings were anti mortem in nature. 17. On an analysis of the evidence on record as above, we are of the u nhesitant opinion that the accused appellants had been involved in the incident leading to the death of Nur Alam. The evidence of PWs 2 and 5 in our assessm ent lend full support to the above view. Having regard to the unimpeachable te stimony of these witnesses to the effect that the accused appellant Safar Ali a nd accused Akabor held Nur Alam so as to facilitate the dagger blow by accused appellant Sahar Ali, their common intention in perpetrating the offence is als o established. The above notwithstanding, the sequence of events as narrated by these witnesses clearly reveal that preceding the same Nur Alam on one hand and the accused appellant Akabor Ali had been involved in a confrontation over a dispu te relating to their paddy land. Noticeably, PW 2 had stated that immediately b efore the incident, Nur Alam who was on his way to his uncle Jaban Ali had gone to visit his land and cultivation and had returned soon thereafter with the c omplaint that he had been assaulted by accused appellant Safar. Some interventio n of this witness is also decipherable from his statement that he sought to dis suade the parties not to fight whereafter the incident of assault by the dag ger followed. The manner in which Nur Alam was assaulted clearly indicate the ag itated state of mind of the appellant accused Saha. Significantly, however, tho ugh Nur Alam was clearly out numbered, one dagger blow was inflicted on him. In the attendant facts and circumstances, it can thus be reasonably inferred tha t had the accused appellants intended to do away with Nur Alam without leaving any scope whatsoever for his survival they could have dealt with him merciles sly. The evidence on record, on the other hand demonstrate that after dealing a single blow, the assailants left the place of occurrence. 18. From the over all evidence of the prosecution witnesses, the incide nt of quarrel, inference of the state of agitated mind of the persons involved and also the fact that only one dagger blow was inflicted , we are inclined to hold that the accused appellants though had acted in coordination with Md Aka bor Ali(absconded accused) in inflicting otherwise a deadly injury, they did not share a common intention of murdering the deceased. 19. On a cumulative consideration as above, we are of the view that the plea raised by the appellants accused to convert the conviction into one under Section 304 Pt II PIC ought to be sustained. Ordered accordingly. 20. It is submitted at the Bar that the accused appellants are in custody si nce 13.9.2000 and therefore have as on date suffered imprisonment for 9 years 4 months. Having regard to the maximum sentence of imprisonment prescribed by l aw for an offence under Section 304Pt II IPC and in the extenuating circumstance s as mentioned hereinabove, we are of the view that it would meet the ends of ju stice if the sentence proposed tobe awarded is limited to the period undergone as on date by the accused appellants. Ordered accordingly. The sentence of fine however, is sustained. In other words, if the appellants accused pay the fine i n terms of the judgment and order of the learned trial court, they would be enti tled in law to set at liberty thereafter. 21. This appeal therefore is partly allowed in the above terms.