MD FAZIRUDDIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal arises out of judgment dated 11.1.95 passed by the Sessions Judge, Karimganj in Sessions Case No. 11/94 thereby holding the accused appellant guilty of offence publishable under Section 302 IPC and sentencing him to undergo imprisonment for life. Aggrieved by the same the appellant has preferred this appeal from jail.

(2.) Since the appellant was unrepresented, Mr. A.K.Goswami was appointed at the State expense as amicus curiae.

(3.) Prosecution case stated in brief was that on 22.6.91 around 3.30 p.m. a cryptic telephone message was received by the incharge of Karimganj PS that one Faziruddin had been severely injured by an unknown person inside an ice factory situated just opposite to the Karirnganj College. On receiving the telephonic information and making entry in the General Diary the officer incharge of the Police Station entrusted the enquiry to PW 8 Jagbir Singh. Ext.4 is the entry made in the General Diary. Accompanied by a police constable the PW 8 proceeded to the Icecream factory where he found the deceased lying in an injured condition. On being specifically asked by the PW 8 as to who inflicted the injury, the injured was not in a position to speak and he was eventually rushed to the Civil Hospital, Karirnganj. A sketch map Ext.5 was drawn on the spot. The incriminating weapon i.e. 'Bhujali' lying near the place of occurence was seized vide seizure memo Ext.6. From the place of occurence the PW 8 proceeded to the Civil Hospital and again tried to examine the injured, but he could not speak. He requested the Officer-in-charge to arrange for recording dying declaration and in fact an Executive Magistrate was deputed for the purpose, but no such statement could be recorded as the injured was all along unconscious and unable to speak. It was almost 7 hours thereafter the owner of the Ice Factory Kamal Debroy (PW 2) loged an ejahar Ext.2 on the basis of which a case under Section 302 IPC was registered and taken under investigation. On 1.7.91 the accused was arrested from his village. He was produced before the Judicial Magistrate on 3.7.91 and on the same date his statement under Section 164 Cr. PC. was recorded by PW 9. On completion of investigation the accused was charged and tried for the above offence. Prosecution examined as many as 9 witnesses to bring home charge to the accused. The defence stand as can be gathered from the confessional statement and the trend of cross-examination of prosecution witnesses was that the accused himself was asaulted by the deceased who was none else than his brother. There was some dispute about properties. His parent having died, he was targetted by the deceased who had in fact led an ambush to kill him and he was forced to leave home. When he went to the ice factory on the eve of 'Id' he was followed by his brother, the deceased. While he was still negotiating with the factory owner his brother appeared and asked him as to where he was going to sell ice candy ? The accused replied "at Idgah" when he was cutioned and asked not to sell ice cream to Bara Idgah and was asked to go some other place. The accused was not agreeable and the deceased threatened him. When it was suggested to the deceased that both of them would sell at Idgah, he was pushed and kicked by the deceased. He screamed and implored of his elder brother not to assault him. Since it was raining, his screams went unheard by others. The deceased continued to assault him saying that he would finish him before could reach Ratabari, a place where the Idgah is situated. It was at that moment the accused took out the Bhojali which he was carrying for cutting banana Heaves and gave a blow or two to the deceased. To quote in his own words - " I did not hit my elder brother in order to kill him but I had hit him in the head with the 'Bhujali' as I could not bear the assault on me."