Judgment:
P.G. Agarwal, J.
1. This criminal appeal is directed against the judgment and order dated 9.9.1994 passed by the Sessions Judge, Morigaon in Sessions Case No. 10(M)92/Sessions Case No. 67(N-M)91 (GR 430/88) whereby the learned Sessions Judge convicted the accused appellant Nur Islam under Section 304 Part-I, IPC and sentenced him to Rigorous Imprisonment for eight years and to pay a fine of Rs. 500 in default further Rigorous Imprisonment for one month.
2. The prosecution case in brief is that in the month of July/August, 1988, when flood occurred in Sakomako area under Jagiroad Police Station, a large number of villagers were taking shelter in the relief camp established on Sakomako hillock. On 1.8.1988 a quarrel took place between the deceased Abubakkar Siddique an the accused appellant Nur Islam over an oar. The prosecution case is that accused Nur Islam gave a dagger blow on the person of Abubakkar Siddique and at the relevant time he was accompanied by four other accused persons. Abubakkar sustained injuries and he died.
3. The trail court framed charge under Section 302/34, IPC, and on conclusion of the trial, convicted and sentenced the accused appellant as aforesaid and four other accused persons were acquitted. Hence, the present appeal.
4. P.W.-7 Dr. Amal Ch. Kotoki, who held the autopsy over the dead body of Siddique Ali, found the following injuries :-
'(1) A stab wound lying obliquely in the 2nd left inter costal space below the mid point of the clavicle. The edge of the wound is clean cut which are almost parallel to each other but curved like an eclipse and have sharp angles at the two entremeties 3 cm x 1 cm. On probing the track is disected obliquely downward towards right side. On opening the thorax the upper lob of left lung and both the Arteria of the heart is found to be perforated and the whole thorax is full of liquid blood. There is extravasation of blood into the tissues of track.
(2) Another small lacertated injury in front of left ear.'
The wound is antemortem in nature.
In this case, there is overwhelming oral evidence on record as regards the injuries sustained by the deceased Abubakkar Siddique and the death of the deceased as a result of the said injury. The trail court, therefore, held that this is a case of homicide and the death of the deceased is not under challenge as such.
5. In this case, we find that there are two eye witnesses to the incident, namely, P.W.-2 Mustt. Nurjahan Begum, wife of the deceased and P.W.-8 Md. Nur Mohammad. P.W.-2 has deposed that at the relevant time, they were taking shelter in the relief camp and on the ill-fated day, after preparing food, she searched for her husband for taking meal. At that time her husband was holding her baby in his arm and she saw the accused person surrounding her husband and thereafter accused Nur Islam gave a dagger blow on the chest of her husband and he became unconscious and thereafter he died.
6. P.W.-8 Nur Mohammad is another eye witness. He has deposed that on the day of occurrence, a quarrel took place between accused Nur Islam and the deceased over a bamboo oar. The villagers seized the said oar and told the persons that the matter will be settled in the evening. Accused Kasem (since acquitted) however threatened the villagers that the incident is going to be grave and thereafter, accused Nur Islam dealt a dagger blow on the chest of Abubakkar Siddique. The baby in the arms of the deceased fell down. The other persons tried to catch hold of the accused, who fled away with some compatriates. However, Abdul Mazid succeeded to get hold the dagger which was handed over to police.
7. The two eye witnesses of the prosecution were cross examined at length but the defence has failed to discredit their testimony. The prosecution has brought out a contradiction in their evidence that they had not stated about carrying/holding of the baby by the deceased. The said contradiction is not material and this may be because of sheer omission. P.W.-2 is the wife of the deceased and we find that there is no reason on her part to falsely implicate the accused and allow the actual assailant to go scot free. In fact, the couple were taking shelter in the relief camp as has been deposed by other witnesses. P.W.-8 on the other hand is an independent witness. The oral evidence of P.W.-2 and P.W.-8 stands fully supported by the medical v on record. The witnesses have stated about dealing of one dagger blow on the chest of the deceased and the doctor had also found one cut injury on the chest. P.W.-9 has also deposed about the incident of quarrel that took place between the deceased and the accused appellant. The seized oar was produced by him and it was exhibited as M.Ext.1. Although P.W.-9 did not see the actual assault, he saw the accused appellant along with others running away with the blood stained dagger in his hand. P.W.-3 Nurul Amin has deposed that while he along with one Abdur Rahim were talking about the flood situation, they heard hulla on the hillock side where the relief camp was established and after some time they saw the appellant Nur Islam, Abdul Kasom and Nur Ali being chased by a large number of persons. When Nur Islam, the appellant reached near him, he enquired as to what has happened and the appellant told that he has assaulted Abubakkar Siddique. Accused Kasem Ali (since acquitted) was shouting as 'Khabardar Khabardar'. Thus, we find that there is a extra judicial confession of the accused appellant soon after the incident and it lends support and corroborate to the evidence of the eye witnesses.
8. The learned counsel for the appellant has submitted that from the evidence of the I/O P.W.-6 it is seen that the witnesses were not examined by him immediately after the incident and hence, there was scope for concoction. As stated above, there is an explanation for delayed examination as the entire area was flood ravaged at the relevant time and hence, the police was also engaged in the relief activities and also there was transport bottleneck. In view of the above explanation, the evidence of the eye witnesses and other prosecution witnesses can not be thrown out for delayed examination by the I/O. So far the alleged contradictions are concerned, we find that the prosecution witnesses are all illiterate village cultivators and they have deposed to the extent, they saw the incident. The evidence stands fully corroborated on material points from the medical evidence on record and the trail court rightly held that the evidence of the two eye witnesses coupled with the evidence of P.W.-3 and others fully establishes the guilt of the accused.
9. The learned counsel for the appellant has also submitted that in this case, all the five accused persons were charged under Section 302/34, IPC and when charge under Section 34, IPC has failed and the other accused persons have been acquitted, the accused appellant could not have been convicted under Section 302, IPC as there was no alternate substantive charge under Section 302, IPC. The defence has also examined one witness whose evidence is of no value as the accused has not taken such plea.
10. In the case of Subran v. State of Kerala, reported in (1993) 3 SCC 32, the Apex Court held :
'A person charged for an offence under Section 302 IPC read with Section 149 can not be convicted of the substantive offence under Section 302, IPC without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 IPC. Appellant 1, Subran, was never called upon to meet a charge under Section 302 IPC simpliciter and, therefore, in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross-examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under Section 302 was not permissible.'
11. In a catena of decisions the Apex Court held that even in the absence of any charge under Section 34, IPC, a person can be convicted with the aid of Section 34, IPC, In the case of Choor Singh v. State of Punjab, reported in AIR 1974 SC 1256, the Apex Court held that where the appellants were fully aware of the crime with which they were charged, no prejudice arises. In the instant case, we find that the appellant was all along knowing the charge against him. The prosecution case was that it was the appellant, who killed the deceased and the other accused persons were tried to be roped in with the help of Section 34, IPC, but the same failed. In the case of Subran (supra) the Apex Court had considered that the accused can not be taken by surprise. In this case, there is ample evidence on record to show that the accused appellant independently committed the offence and as the appellant was knowing the charge and tried to meet the same, there was no question of any prejudice being caused to him. In a latter case of Joy Singh v. State of Maharashtra, reported in judgment today (1996) 4 SCC 728, the Apex Court held that the omission to frame the charge or departure from the charge can not invalidate the conviction, unless prejudice has been caused. In the instant case, from the materials available on record, we find that no prejudice was caused to the accused for non-framing of the substantive charge under Section 302, IPC.
12. In view of the above, we hold that the conviction of the accused appellant under Section 304 Part-I, IPC, needs no interference. Now coming to the question of sentence, we find that the incident took place in the year 1988 and it was a trifle matter and this is a case of single injury, Hence, the accused appellant is sentenced to imprisonment for four years and to pay a find of Rs. 1000 in default further imprisonment for one month. The period of imprisonment undergone by the accused appellant shall be set off under Section 428, CrPC. The accused appellant is directed to surrender forthwith to serve out the sentence and to pay the fine.
13. The appeal stands disposed of accordingly. Send down the records to the Sessions Judge, Morigaon along with a copy of the judgment.