DEATH REFERANCE No.11 OF 2006
THE STATE OF BIHAR----------------------------------------------------------------Appellant.
Versus
MD. AZIMUDDIN---------------------------------------------------------------------Respondent.
With
CR. APP (DB) No.1225 OF 2006
MD.AZIMUDDIN------------------------------------------------------------------------Appellant.
Versus
STATE OF BIHAR---------------------------------------------------------------------Respondent.
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Reference made by Sri Baleshwar Sharma, Additional Sessions Judge, Fast Track Court
No.1, Supaul vide Letter No.264 dated 15.12.2006 and appeal against the Judgment and
Order dated 18th of November, 2006 passed in Sessions Trial No.165 of 1996.
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For the Appellant : M/s. Arun and Sanjay Kumar @ S.K. Advocates.
For the State : Mr. Ashwani Kumar Sinha, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON'BLE MR. JUSTICE ABHIJIT SINHA
Shiva Kirti Singh &
Abhijit Sinha,JJ. The Death Reference and the Criminal Appeal under consideration arise out
of the same Judgment and Order dated 18th of November, 2006 passed in Sessions Trial
No.165 of 1996(arising out of Raghopur P.S. Case No.101 of 1995, corresponding to G.R.
No.509 of 1995) by learned Addditional Sessions Judge, Fast Track Court No.1, Supaul ,
whereby appellant Md. Azimuddin aged about 52 years was convicted under Section 302
I.P.C. and sentenced to death.
2. The substance of the prosecution case as contained in the fardbeyan (Ext.2) of
P.W.6, Shahnawaz Khan, a son of the deceased, Md. Shamshad, is that on 28.9.1995 at
about 7.15 P.M. the deceased came to his house and asked the informant to serve him meal as
his wife had gone to her parent‟s house. While the informant, P.W.6 was taking out meal,
the appellant, Md. Azimuddin along with Nooruddin (absconding accused) came in the house
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and questioned Md. Shamshad(deceased) as to why he had got „Madarsa‟ belonging to Md.
Azimuddin demolished . The appellant was armed with pistol and bhujali (sharp cutting and
penetrating weapon). Md. Shamshad denied the allegations. The appellant asked the
deceased to come for talk at the house of Md. Illiyas (P.W.5). The deceased went out with
the accused and the informant (P.W.6) followed them. On reaching near the house of Motiur
Rahman (P.W.2), Md. Azimuddin abused Motiur Rahman in loud voice and also abused Md.
Shamshad(deceased) that he had got his house(Madarsa) demolished . The informant was at
a distance of about 10 yards behind them near the shop of Md. Mannan. Two other accused,
namely, Md. Zamrul and Bhola Mian of same village were also standing near the house of
Md. Illiyas. While abusing, suddenly Azimuddin cried “Allah Ho Akbar” and shot at Md.
Shamshad with a country made pistol causing injuries on chest. Md. Shamshad fell down.
Thereafter Azimuddin further assaulted with bhujali causing injuries in the left hand and on
the left side of the head of the deceased. Md. Shamshad died at the place of occurrence. The
other accused Md. Nooruddin was helping the appellant by flashing torch light on the body
of Md. Shamshad (deceased). When the informant wanted to go near his father, the appellant
rushed towards him and shouted to catch and kill the informant. The informant ran back and
hid in the house of Md. Mannan. The appellant and Nooruddin went there to search the
informant but Anwari Begum (P.W.7), wife of Md. Mannan, came down and hid the
informant in her room and the accused persons went back to the house of Motiur Rahman
where they hurled abuses and tried to break open the door of his house but on being
unsuccessful they went to the house of Md. Illiyas. The house of Md. Illiyas was already
surrounded by Md. Zamrul and Bhola Mian. They wanted to break open the door of the
house of Md. Illiyas but in the mean time they heard the arrival of police party and hence fled
away towards south. The police party was accompanied by Sub-Inspector of Police, R.K.
Singh (P.W.8) who recorded the fardbeyan of the informant (P.W.6) and took up
investigation.
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3. The Investigating Officer (P.W.8) inspected the place of occurrence, prepared
the inquest report of the deceased and sent the dead body for post-mortem examination.
Subsequently, he recorded the statement of witnesses, obtained the post-mortem report and
after completing investigation submitted chargesheet against the appellant and three others
for offences under Sections 302/34 I.P.C. and Section 27 of the Arms Act. Initially the
appellant and Md. Zamrul and Bhola Mian were shown as absconders in the chargesheet and
the case progressed only in respect of co-accused, Nooruddin. Later the appellant was taken
into custody in connection with another case and then remanded in this case. His case which
had been separated earlier was amalgamated and it appears that later Md. Nooruddin also
absconded and only the appellant could be put on trial. During the trial he denied the charges
framed against him. His defence is only of false implication as appears from suggestion
given to the witnesses. It was also the defence of the appellant that the deceased, Md.
Shamshad was killed by his brothers due to family dispute and the appellant has been
implicated by his enemies by taking the informant in collusion. The defence has not
examined any witness nor has brought on record any documentary evidence.
4. The prosecution in order to prove the charge has examined in total 9
witnesses. P.W.1, Moijur Rahman, P.W.2, Motiur Rahman, P.W.3, Md. Mannan, P.W.4,
Abdul Rashid and P.W.5, Md. Illiyas are co-villagers and their houses are in the vicinity of
the place of the occurrence. They have deposed in support of the prosecution case by
claiming to have seen the entire occurrence, or to have seen part of the occurrence after they
heard loud abuses hurled by the accused persons and some of the witnesses saw the later part
of the occurrence after the deceased had been shot. They heard the sound of firing and then
saw the occurrence thereafter in which they saw the appellant inflicting injury on the neck
and other parts of the body of the deceased with a bhujali, a sharp cutting weapon. P.W.6,
Md. Shahnawaz Khan is son of the deceased and informant of this case. He has claimed to
be an eye witness of the alleged occurrence and has supported the case fully against this
appellant as alleged in the F.I.R. P.W.7, Anwari Begum is wife of P.W.3, Md. Mannan, and
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as claimed by the informant in the fardbeyan, she has supported his case that when he was
chased by the accused persons he was given shelter by P.W.7 who allowed him to enter
into her house and hide himself. P.W.8 is the Investigating Officer of the case, Sub-
inspector of Police, Randhir Kumar Singh and P.W.9 is Dr. Ajay Kumar Manjhi who
conducted autopsy on the dead body of the deceased and found one fire arm injury with
charring margin which in his opinion was from close range and also two incised injuries, one
on the neck and the other on the wrist. Some of the important documents on record are
Ext.2, fardbeyan, Ext.3, the formal F.I.R., Ext.4, the inquest report, Ext.5, the chargesheet
and Ext.6, the post-mortem report.
5. Learned counsel for the appellant has criticized the evidence of P.Ws.1 and 2,
who are co-villagers that they had claimed before the I.O. that they came after hearing the
sound of firing. Against P.W.4, Abdul Rashid, it was submitted that in his earlier statement
to the I.O. to which his attention was drawn during cross examination, this witness had
admitted to be at the Masjid and that he had received information of the occurrence there
and then he came to the P.O. Regarding P.W.6, the informant, it was submitted that he has
made improvement upon his earlier version in the fardbeyan by adding the names of co-
accused, Bhola Mian and Zamrul amongst the names of accused who had come to the house
of the informant and the deceased at the initial stage. The said criticism is correct but it is of
no material consequence so far as prosecution case against this appellant is concerned. The
initial case of the prosecution in the fardbeyan was that this appellant and Nooruddin had
come inside the house of the deceased and Bhola alongwith Zamrul were near the place of
occurrence and guarding the house of Md. Illiyas and Motiur Rahman. The case against
appellant has remained consistent even during deposition of the informant in court.
6. It is unnecessary to discuss the earlier criticism levelled against particular
witnesses in greater detail because it is clear that the informant had seen the occurrence with
his own eyes and has consistently deposed that it was this appellant who fired due to which
his father fell down and thereafter it was this appellant who caused further injury to his father
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with bhujali. This version is supported by another eye witness, P.W.3, Md. Mannan, whose
house stands in close vicinity and who saw the occurrence from the southern window after
hearing the commotion and abuses. P.W.3 has not been cross examined in respect of his
earlier statement before the I.O. and there is nothing in his cross examination to discredit his
testimony as an eye witness. The Investigating Officer (I.O.), P.W.8, has given the details of
the investigation conducted by him. Further, he has disclosed that there were 13 cases
pending against the appellant who had absconded in some of those cases. He has also stated
in paragraph 27 of his deposition that he had found blood mark on the earth at the place of
occurrence. From the I.O. it has been taken in cross examination that the distance of Supaul
from Raghopur P.S. is about 35 kilometers and both are connected by metalled road. The
time taken to cover the distance by bus and taxi is 1 to 1 ½ hours. The medical evidence as
deposed by Dr. A.K. Manjhi, P.W.9, shows the presence of anti mortem injuries on the dead
body of the deceased. The incised wound on the left lateral side of face and extending to the
neck behind the left ear cutting skin, muscles , left mandible bone and other major blood
vessels was of the size of 6″x 3″x 3″ . The other incised wound on the left lateral side of the
wrist joint cutting skin vessels tendon etc. was of the size of 1 ½” x 1″ x 1″ and the third
injury was an oval shaped wound with blackening and charring margin of the size 3/4″ x 1/2″
x thoracic cavity deep over the anterior aspect of the left side of the chest wall above the
mammary gland. In the opinion of the doctor the cause of death was haemorrhage and shock
leading to cardiac respiratory failure due to injury no.1 caused by sharp cutting weapon, may
be by bhujali. Injury No.3 on the left side of the chest was by fire arms. The doctor
recovered 11 pellets from the dead body which were preserved. In the opinion of the doctor
the injuries found on the dead body of the deceased were sufficient to cause death in the
ordinary course of nature. The post- mortem examination was conducted on 29.9.1995 at 8
A.M and the time elapsed since death was estimated to be within 24 hours.
7. Learned counsel for the appellant has submitted that although the appellant
was charged for the offence under Section 302 read with Section 34 I.P.C. but ultimately he
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has been convicted for the offence under Section 302 simplicitor and hence the conviction is
bad in law.
8. Learned counsel for the State has replied that such irregularity in framing the
charge cannot affect the conviction unless it has caused prejudice to the accused and in the
present case the prosecution is consistent in alleging against the appellant that he fired shot
causing injury to the deceased and further caused serious injury near the neck and other
portions of the body of the deceased. According to the learned counsel for the State Section
464 of the Code of Criminal Procedure takes care of such irregularity in framing of charge.
In the facts of the case, we find merit in the submissions of the learned counsel for the State.
9. It was next submitted on behalf of the appellant that the F.I.R. was shown to
have been prepared on 28.9.1995 at 21.45 hours and it ought to have been sent to the
concerned Magistrate at Supaul which was only at a distance of 35 kilometers, on 29.9.1995
but records of the case show that the F.I.R. was perused by the Magistrate on 30.9.1995.
The aforesaid submission is no doubt based on the materials on record but delay of one day
in receiving and perusal of the F.I.R. by the Magistrate itself cannot be sufficient to
disbelieve the prosecution case unless there are other facts and the circumstances to raise
reasonable doubts that the prosecution has taken advantage of such a delay and possibily it
was done deliberately to ante date the fardbeyan and the F.I.R. In the present case it is found
that police reached at the place of occurrence and recorded the fardbeyan within about one
hour of the occurrence. According to the fardbeyan the occurrence took place on 28.9.1995
at 7.15 P.M. (19.15 hours) and the fardbeyan was recorded on the same date at 20.20 hours at
the place of occurrence. The alleged place of occurrence was at a distance of 4 kilometers
from the police station and hence the fardbeyan appears to have been recorded at appropriate
time. The inquest report (Ext.4) was prepared by the I.O. on the same date at 20.45 hours.
According to the evidence of the I.O. the dead body was sent to Supaul for post-mortem
examination and the post-mortem report was received by the I.O. The said report has been
proved by the doctor, P.W.9 (Ext.6). The reading of Ext.6 shows that the dead body of the
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deceased was received for post-mortem examination on 29.9.1995 at 7.20 A.M. in
connection with Raghopur P.S. Case No.101 of 1995 dated 28.9.1995. The dead body was
seen by the doctor at 7.35 A.M. and the post-mortem commenced at 8 A.M. on 29.9.1995. It
is further found that in this case there is no scope to raise any doubt regarding identity of the
accused persons including the appellant because they were known to the prosecution
witnesses and the informant from before. The appellant and the prosecution party are co-
villagers. The defence case is only of false implication and not that the occurrence took
place at some other place or at other time. From the cross examination of the witnesses, it is
clear that the defence has not made any serious challenge to the time and place of the
occurrence. In such circumstances, the delay of one day in perusal of the F.I.R. by the
Magistrate has not caused any prejudice to the prosecution case.
10. On the basis of questions put to witnesses during cross examination, it was
submitted that some of the witnesses have indicated that on the date of occurrence the
weather was inclement. On that account it has been submitted that the weather was bad and
visibility must be poor and hence the claim of identification in moon lit night must be
doubted. The occurrence took place towards the end of the month of September and weather
during that time starts turning cold. P.W.7 has explained that the weather was bad in the
sense that strong wind was blowing on that date but so far as conditions of the sky is
concerned, all the witnesses are consistent that it was a moon lit night and it has come in the
F.I.R. also that one of the co-accused was flashing a torch light at the dead body of the victim
in order to facilitate further assault by the accused. Hence the submission that weather was
inclement so as to effect the visibility and chance of identification does not have any
substance. As noticed earlier, the appellant is a co-villager of the informant and witnesses
and being known from before there could be no difficulty in identification of the appellant
particularly when he is shown to have come inside the house of the informant and then the
deceased accompanied him on pressure put by the appellant. In such circumstances, as
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already observed earlier, there is no difficulty in holding that in this case the identification of
the appellant is not at all in doubt.
11. A serious attempt was made to take us through the deposition of the witnesses
to show that at the time of occurrence they were in their houses or standing outside and
hence from such long distance they could not have seen the occurrence. On this issue,
P.W.1 appears to have been questioned about the distance of his house from the house of the
informant to which he has replied that the said distance is 1 and 1/2 jarib (700 yards). In
paragraphs 1 and 2 of his deposition this witness has claimed that at the time of taking dinner
in his house he heard hulla and came out and heard the voice of the appellant abusing
Shamshad. Then he heard the sound of gun shot and he went there. 2 to 4 persons joined
him. He reached near the coconut tree near the house of Motiur Rahman(P.W.2) . He saw
Shamshad lying on the ground there and the appellant was slitting his throat with a dagger.
However, the I.O., P.W.8, has contradicted this witness and has clarified that P.W.1 had not
stated before him that he saw the appellant slitting the throat of Shamshad rather he had
stated that he went near the place of occurrence after arrival of police there. Hence, P.W.1
can only be treated as a witness corroborating the prosecution case that prior to assault the
appellant was hurling abuses to the deceased. P.W.2 was also cross examined about the
distance of P.O. from his house to which he has given a categorical reply that the said
distance is only 10 to 12 yards. To similar question P.W.3 has replied that the place of
occurrence is at a distance of 50-60 steps from his house and no house exists in between.
P.W.4 has stated before the I.O. that at the time of occurrence he was at the masjid where he
received information about the occurrence. That masjid according to this witness was at a
distance of 50-60 yards from the place of occurrence. This witness claims to have seen part
of the occurrence from the distance of 10-12 yards from near the house of P.W.2, Motihur
Rahman. P.W.5, Md. Illiyas , has given the distance of his house from the place of
occurrence as only 15 steps and according to the informant, P.W.6, his house is at a distance
of 20-25 steps from the place of occurrence. According to P.W.7, Anwari Begum, her house
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is at a distance of 10-15 steps from the place of occurrence. On a careful perusal of the
distance given by the witnesses, as noticed above, it appears that the houses of these
witnesses except P.W.1 are located very close from the place of occurrence from where they
could have easily heard the noise as well as abuses and on coming out from their houses or
through windows they could have witnessed the occurrence itself.
12. It is useful to notice that all the witnesses are co-villagers and some of them
have disclosed relationship with this appellant whereas some are related to the deceased also.
P.W.7, Motiur Rahman, has disclosed that he is the brother-in-law of the deceased and own
cousin of the appellant. P.W.3, Md. Mannan, has claimed to be mausera bhai(cousin) of the
deceased. P.W.4, Abdul Rashid, has accepted to be a distant relation of the deceased.
P.W.5, Md. Illiyas, has disclosed that the appellant is cousin of his wife. P.W.7, Anwari
Begum, as noticed earlier, is wife of P.W.3. The defence failed to bring on record any
documentary evidence to show past litigation or enmity specially with the informant and
hence there is no merit in the argument that the appellant may have been implicated on
account of previous enmity. On a careful consideration of all the materials on record we
find that the trial court has committed no error in convicting the appellant for the charge
under Section 302 I.P.C.
13. On behalf of the appellant it was submitted that the special reasons given by
the trial court for awarding death sentence to the appellant are not good reasons for awarding
the extreme penalty of death and there are no special circumstances to treat the offence in
question as rarest of rare so as to warrant death penalty to the appellant.
14. There is no difficulty that the law as held by the Constitution Bench of the
Apex Court in the case of Bachan Singh Vs. State of Punjab, AIR 1980 S.C. 898 requires
special reasons for awarding death penalty. This is also the mandate of Section 354(b) of the
Cr.P.C. It is also well settled in law that the death penalty should be awarded only in the
rarest of the rare cases where the judicial conscience is convinced that award of life
imprisonment cannot be adequate punishment for the crime in question. Applying the same
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settled principles to the facts of the case we find that as per prosecution case itself, the
appellant was in a highly agitated state of mind because he believed that his house (madarsa)
had been forcibly broken down by some co-villagers and the deceased was a party to such an
act. On account of such agitation the appellant has caused the death of one person and such
crime cannot be said to be the rarest of rare cases. The only aggravating circumstance
against the appellant is the manner of assault. After causing a fire arm injury in the chest he
felt dissatisfied and proceeded to inflict serious cut injury near the neck of the deceased and
also on the left wrist. Apparently, he wanted to ensure that there was no chance of survival
of the deceased. It is apparent that on the ground of such cruelty and his attempt to chase the
informant also with a view to assault or kill him, the learned trial court has awarded death
sentence to the appellant. The cruelty in the manner of committing the crime in this case is,
no doubt, some- what shocking to the conscience. But that by itself, in the facts of the case,
should not bring the offence in the category of the rarest of rare cases and hence in our view
it is not a case where death penalty alone can be sufficient for punishment.
15. Hence, while maintaining the conviction of the appellant, we commute the
death sentence into life imprisonment. With this modification in the sentence, the criminal
appeal preferred by the appellant is dismissed and the Death Reference is answered in
negative.
(Shiva Kirti Singh,J)
(Abhijit Sinha,J)
Patna High Court, Patna.
Dated:The 15th of July, 2008.
Pradeep Srivastava/A.F.R.