Mashuq Mia @ Iqbal VS. The State

Appellate Division Cases

(Criminal)

PARTIES

Mashuq Mia @ Iqbal ………………………Appellant.

-vs-

The State.………………………………………………………Respondent.

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATED : 14th August 2004

The Penal Code (XLV of I860), Section 304, 324.

The Code of Criminal Procedure (V of 1898), Section 161.

We have already found that the doctor who held post mortem examination over the deadbody of the deceased found (1) One healed stitched wound (oblique) on front of the right parietal bone measuring 1″ in length. (2) Three abreasinon marks on anterior aspect of left shin each measuring V2″X “, “X V4″ amd ” X W which were healed and scab were formed. In the opinion of the doctor death of the deceased was due to complications of the above mentioned injuries which were ante-mortem and homicidal in nature (9)

Now the question is whether a piece of stone can be treated as a weapon of offence in order to sustain conviction of the appellant under section 324 f the Penal Code In the Penal Code of India by Dr. Sir Hari Singh Court, 9th Edition (Vol.Ill) page-2626, the learned author while dealing with the words “weapon of offence” opined as under:

“But the next clause dealing with an instrument, which, used as a weapon of offence, is likely to cause death, is more general, and not so easily definable. It is not used ejusdem generis with the preceding instruments. It is rather used to supplement them. Such instruments may be of any kind or description: they are lethal if they are used as a weapon of offence likely to cause death. They need not be necessarily adopted to that use. But if, when turned to that use, they are likely to prove lethal, they are sufficiently within the rule. For instance, a hammer or a crowbar is an instrument of this description. They are ordinarily used for the peaceful occupations of men, but from their weight and character they would be as deadly as any instrument specially designed for slaying men. They are, therefore, lethal weapons for the purpose of this section” (11 & 12)

We are also of the view that from the nature of injury found on the parietal region of head of the deceased, a piece of stone can be termed as a weapon of offence and accordingly the High Court Division rightly convicted the appellant under section 324 of the Penal Code and we find no cogent reason to interfere with the same (16)

Abdul Malek, Senior Advocate with Mr. Subrata Chowdhury, Md. Nawab Ali, Advocate-on-Record…………………..For the Appellant

Abdur Razzaque Khan, Aditional Atorney General instructed by A. K. M. Shahidul Haq, Advocate-on-record …………………………For the Respondent


JUDGMENT

1. M. M. Ruhul Amin J: – This appeal by leave is directed against the judgment and order dated 02.06.1999 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2777 of 1998 dismissing the appeal of the appellant modifying the conviction and sentence passed by the learned Additional Sessions Judge, 3rd Court, Sylhet in Sessions Case No. 42 of 1994 altering conviction of the appellant under section 304 Part-1 of the Penal Code to a conviction under section 324 of the Penal Code and modifying sentence of imprisonment for 2(two) years with a fine of Tk. 500/- in place of rigorous imprisonment for 10(ten) years and fine of Tk. 3000/-.

2. The case of the prosecution in brief is that in the last election of the local Union Parishad accused Mashuq Mia alias Iqbal was a candidate for the post of Chairman and in that election the informant and his sons worked against accused Mashuq Mia. On a date previous to the occurrence a duck belonging to the wife of the deceased was killed by one Shohel, a relation of accused Mashuq Mia. A salish was held over the matter at the residence of accused Mashuq Mia on 13.11.1992 at about 8.00 A.M. The informant party and others went to the salish at the house of accused-appellant Mashuq Mia where accused Bahir, Abdul Gafur and Abdul Kadir were also present. At the salish accused Mashuq Mia refused to settle the dispute over killing of duck but was insisting to settle up dispute regarding last Union Parishad election matter. At the hostile attitude of the accused persons the informant and his sons rushed to their dwelling house and took shelter in their respective dwelling huts. The accused persons then by forming an unlawful assembly at about 8.00 A.M. entered into the dwelling house of the informant and started throwing brick bats. Accused Bashir and Samir caught hold of the deceased and took him to the courtyard of the swelling house of the informant. There accused Mashuq Mia struck at the forehead of deceased Sobhan with stone causing bleeding injury, accused Bashir also struck with another stone on the chest and other accused persons assaulted the said Sobhan. On hearing alarm raised by Sobhan neighbouring people started coming to the place of occurrence but they also faced throwing of back bats by the accused party. The inmates of the house of the informant raised hue and cry and other people came and saved the situation. On the above allegations the informant lodged an F.I.R. Police on completion of investigation submitted charge sheet against accused Mashuq Mia and others. The accused persons were placed on trial before the learned Additional Sessions Judge, 3rd Court, Sylhet in Session Case No. 42 of 1994. The prosecution examined as many as 15 witnesses and the defence examined none.

3. The trial court on consideration of the materials on record found the appellant guilty of the offence punishable under section 304 Part-1 of the Penal Code and sentenced him to suffer rigorous imprisonment for 10 years and to a pay fine of Tk. 3000/in default to suffer rigorous imprisonment for a further period of three months. The appellant and others preferred Criminal Appeal No. 2777 of 1998 before the High Court Division. A Division Bench of the High Court Division by the impugned judgment and order dated 02.06.1999 dismissed the appeal filed by the appellant with modification as aforesaid. Being aggrieved the appellant preferred civil petition for leave to appeal No. 181 of 1999 and leave was granted to consider the submission that as the High Court Division found that deceased Abdus Sobhan died not due to head injury but due to some disease of abdomen the upholding of conviction can not be sustained and also the submission that the High Court Division merely on surmises and conjectures and in a very slip shod manner and without considering the evidence on record dismissed the appeal modifying the order of conviction and sentence passed by the trial court and also the submission that the High Court Division failed to notice the doubtful features and numerous lacuna in the prosecution case and refused to consider the grounds urged in appeal and also failed to consider the evidence and contradictions in the same and dismissed the appeal without assigning any cogent reason and the further submission that only assault attributed to the appellant being a dealing of blow by a piece of stone on the forehead of the deceased which can only cause lacerated injury and cannot be an incised injury as found by P.W.I3, the conviction of the appellant under section 324 of the Penal Code can not be sustained and the last submission that the judgment of the High Court Division is not a judgment in the eye of law.

4. We have heard Mr. Abdul Malek, the learned Counsel for the appellant and Mr. Abdur Razzaque Khan, the learned Additional Attorney General for the respondent and perused the judgment of the High Court Division and other connected papers.

5. Mr. Abdul Malek submitted that P.Ws. 1 and 2 did not see the occurrence. P.W.3 said to be an eye witness did not say anything regarding causing injury to the deceased by the appellant. P.Ws 4,7 and 8 were tendered. P.W. 5 stated that the appellant Mashuq Mia assaulted deceased with stone at the head but he did not state this to the Investigation Officer while he was examined under section 161 of the Code of Criminal Procedure and as such no reliance can be placed on his evidence in this regard the same being inadmissible. P.W.6 is wife of the deceased. She stated that she saw the occurrence which took place at her courtyard as she opened the door of dwelling hut. She stated that appellant Mahuq Mia assaulted her husband, the deceased at the head with a piece of stone in his hand. She further stated that she was examined by the Investigating Officer. It appears that she was examined by Investigating Officer on 20.12.1992. There is no explanation as to why the Investigating Officer recorded her statement after a lapse of over 30 days. There is no allegation that she was not available at the place of occurrence house immediately after the occurrence. P.W.9 is not cited as a witness in the charge sheet and as such the Investigating Officer did not record his statement under section 161 of the Code of Criminal Procedure but was examined as witness in the Court during trial. P.W.10 Ana Mia, Police Constable carried the dead body of the deceased to the Sylhet M. A. G. Osmani Medical College Hosptial, morgue and identified the dead body to the Medical Officer on duty. P.W.ll, Dr. Abu Ahmed Adiluzzaman, Lecturer of Forensic Medicine Department, Sylhet M.A.G. Osmani Medical College & Hospital held autopsy over the dead body of the deceased and found (J) One healed stitched wound (oblique) on front of the right parietal bone measuring 1″ in length.

(2) Three abreasion marks on anterior aspect of left shin each measuring ‘/V’X “,”X 14″ and ” X Vi” which were healed and scab were formed. On dissection of the external wounds there was sign of healing procedure with infiltration of blood to the surrounding tissue. About 01 oz. ante mortem clotted blood was present under the scalp at right parietal region. Inside the cranium there was Oedema and congestion at right parietal region of the cerebrum. In the opinion of the doctor, death was due to complications of the above mentioned injuries which were ante-mortem and homicidal in nature.

6. There is no denying the fact that over the killing of a duck belonging to the wife of the deceased a salish was held at the dwelling house of accused-appellant Mashuq Mia on the date of occurrence at about 8.00 A.M. and in the salish appellant Mahuq Mia told that the dispute over the last election of local Union Parishad would be settled and not the dispute over the killing of the duck. The prosecution case is that seeing the hostile attitude of the accused persons the informant and his sons rushed to their dwelling house and took shelter in their respective dwelling huts. The accused person then by forming an unlawful assembly at about 8.00 A.M. entered into the dwelling house of the informant and started throwing bricks bats. Accused Bashir and Samir caught hold of the deceased and took him to the courtyard. Appellant Mahuq Mia assaulted the deceased at the head with a peice of stone in his hand and other accused also assaulted the deceased and the deceased ultimately succumbed to his injuries.

7. Mr. Malek argued that although P.W.6, wife of the deceased stated that she saw the occurrence as she opened the door of dwelling hut but she was examined by the Investigating Officer after a month of the occurrence. So, no reliance can by placed on her evidence and the evidence of other witnesses are not legal evidence at all. He lastly argued that if the prosecution case is believed then the appellant can at best be convicted under section 323 of the Penal Code as a piece of stone can not be termed as a weapon of offence in order to attract the provisions of section 324 of the Penal Code.

8. The learned Additional Attorney General submitted that P.W.6 wife of the deceased is a truthful witness and she saw the occurrence as she opened the door of the hut when her husband was assaulted by the appellant and others at her courtyard and that was very natural for her. He also argued if this P.W.6 is believed the conviction and sentence passed by the High Court Division can be maintained.

9. We have already found that the doctor who held post mortem examination over the deadbody of the deceased found (1) One healed stitched wound (oblique) on front of the right parietal bone measuring 1″ in length. (2) Three abreasinon marks on anterior aspect of left shin each measuring W’X “, “X Vi” amd ” X lA” which were healed and scab were formed. In the opinion of the doctor death of the deceased was due to complications of the above mentioned injuries which were antemortem and homicidal in nature.

10. The occurrence is said to have taken at about 8.00 A.M. on 13.11.1992 in courtyard of the dwelling house of the informant. It is true that the prosecution is to prove the case beyond all reasonable doubt. The defence is not required to prove anything. The only plea of the accused person is that he is innocent. In this case there is no suggestion by the defence that the occurrence took place elsewhere and in a different manner.

11. Now the question is whether a piece of stone can be treated as a weapon of offence in order to sustain conviction of the appellant under section 324 f the Penal Code.

12. In the Penal Code of India by Dr. Sir Hari Singh Court, 9th Edition (Vol.Ill) page-2626, the learned author while dealing with the words “weapon of offence” opined as under: “But the next clause dealing with an instrument, which, used as a weapon of offence, is likely to cause death, is more general, and not so easily definable. It is not used ejusdem generis with the preceding instruments. It is rather used to supplement them. Such instruments may be of any kind or description: they are lethal if they are used as a weapon of offence likely to cause death. They need not be necessarily adopted to that use. But if. when turned to that use, they are likely to prove lethal, they are sufficiently within the rule. For instance, a hammer or a crowbar is an instrument of this description. They are ordinarily used for the peaceful occupations of men, but from their weight and character they would be as deadly as any instrument specially designed for slaying men. They are, therefore, lethal weapons for the purpose of this section.”

13. It is to be mentioned here that in this case the conduct of the investigating agency is not fair. It appears that as many as four Investigating Officers including one Assistant Police Commissioner were engaged in this case.

14. We have noticed that there is no explanation for not examining the wife of the deceased (P.W.6) in the case immediately after the occurrence. But the same has not effected the prosecution case materially because of the other evidence on record.

15. Therefore, in the facts and circumstances of the case and in the light of our above discussion, we are of the view that the prosecution has been able to prove the case beyond all reasonable doubt against accused-appellant Mashuk Mia alias Iqbal.

16. We are also of the view that from the nature of injury found on the parietal region of head of the deceased, a piece of stone can be termed as a weapon of offence and accordingly the High Court Division rightly convicted the appellant under section 324 of the Penal Code and we find no cogent reason to interfere with the same.

The appeal is dismissed.

Ed

Source: III ADC (2006), 57