High Court · 2012

ssist the analysis of the evidence on record for an appropriate adjudication. Im peaching the decision assailed in the instant appeal, the learned counsel for th e appellants has dismissed the case of the prosecution to be unworthy of any cre dit, its witnesses having contradicted each other on material particulars. Not o nly the prosecution witnesses, according to Mr Ahmed, have been irreconcilably i nconsistent with regard to the place of the alleged occurrence, the varying numb er of the injuries sustained by the deceased as evident from the ocular testimon y, the post mortem and the inquest reports cast a serious doubt on the veracity of the prosecution case. According to the learned counsel, the evidence of P.W.1 , P.W.3, P.W.9 and P.W.11 projected as eye witnesses to the incident being not o nly incompatible with each other, the same renders their presence at the place of occurrence doubtful. Further, the failure of the prosecution to explain the i njuries on one of the accused/ appellants, namely, Kalimuddin is fatal, he maint ained. Without prejudice to these pleas, Mr Ahmed has urged in particular that a s none of the prosecution witnesses has attributed any specific role of the accu sed/ appellant Mogjul Ali, there was no basis for recording his conviction. The prosecution having failed to establish either explicitly or implicitly the forma tion of an unlawful assembly with the common object of committing the assaults o n the deceased and others, as alleged, the learned Trial Court fell in gross err or in convicting and sentencing the accused/ appellants with the aid of Section 34 IPC, he insisted. Moreover, as the Investigating Officer(s) failed to seize t he blood stained earth of the place of occurrence, the wearing apparels of the d eceased and the weapon of assault, there was no perceptible nexus between the al leged incident and the accused/ appellants for which they are entitled to clean acquittal. According to the learned counsel, apart from the inherent contradicti ons and inconsistencies in the testimony of the prosecution witnesses, their ver sion at the trial being a visibly improved one when compared to their statements recorded in course of the investigation, no reliance can be placed on them, he maintained. Mr Ahmed, to reinforce his contentions, placed reliance on the decis ion of this Court in Mintu Hazarika -vs- State of Assam, 2002 (3) GLT 80.

6. Mr Mazumdar per contra has contended that having regard to the c harges framed against the accused/appellants and the evidence of the prosecution witnesses, more particularly P.W.1, P.W.3, P.W. 9 and P.W.11, the learned Trial Court was perfectly justified in convicting and sentencing them for the offence s proved and, thus, no interference therewith is warranted. The learned Addition al Public Prosecutor emphasized that the evidence on record not only appropriate ly laid the immediate preface for the incident of murderous assaults by the accu sed/ appellants and their companions resulting in the death of Musa Ali and the injuries suffered by others, the sequence of events demonstrably establish forma tion of an unlawful assembly by them (accused/ appellants) and others with the c ommon object of committing the crime. Mr Mazumdar, therefore, has urged that as the accused/ appellants and their cohorts as members of the unlawful assembly ha d been charged inter alia under Section 149 IPC, proof of their individual roles in the assaults was inconsequential and all were equally and vicariously liable for the offending act of the others. The learned Public Prosecutor has argued that even assuming that Section 34 IPC was not attracted to the facts of the cas e, the conviction of the accused/ appellants with the aid of Section 149 IPC is permissible in the face of the overwhelming evidence on record and, thus, having regard to the heinous nature of the offence committed, no interference with the impugned judgment and order is called for in the interest of justice.

7. To effect a comparative evaluation of the arguments advanced, a brief survey of the evidence on record is indispensable. P.W.1, Md Sahjahan Ali, brother of the deceased as well as the informant deposed that on the date of th e incident at about 4 p.m. the cattle of the accused/appellant Rahman Ali had tr espassed into the paddy field of his (P.W.1) maternal uncle Alimuddin and had de stroyed the crop. In connection with the said incident an altercation took place between Alimuddin and Rahman Ali in the evening, whereafter, at about 7 p.m. ac cused/appellant Abdul Jalil called his maternal uncles Alimuddin, Khalekuddin, M umtaz Ali and his elder brother Musa Ali to a meeting convened for the purpose o f discussing the issue of building a mosque. According to this witness, his mate rnal uncles declined to go for which accused/ appellant Abdul Jalil forcibly too k Mumtaz Ali to the house of Mokjul. The witness further deposed that a little l ater he heard hue and cry from the house of Mokjul, whereafter, he along with hi s maternal uncles and his brother Musa Ali rushed to the place. The witness stat ed that no sooner they had reached the house of Mokjul, accused/appellant Rahman Ali came running and dealt a ’dao’ blow on him which, however, missed him as he moved aside. The witness stated that simultaneously accused/appellant Kalimuddi n inflicted a ’dao’ blow on his left arm, whereafter, accused/appellant Rahman A li assaulted his elder brother Musa Ali with a ’dao’. Accused/appellant Rahman A li, according to the witness, inflicted another ’dao’ blow on his elder brother’ s head. The witness stated that as the injured fell down on the ground, accused/ appellants Rahman Ali and Kalimuddin started hacking him (Musa Ali) with ’dao’ c ausing as many as 14 injuries on his body. The witness stated that thereafter th ese two accused/appellants fled from the scene and as he (witness) held his seve rely injured elder brother, Nijam Ali arrived at the spot. Having heard of the q uarrel his parents also turned up, whereafter, they shifted the injured Musa Ali to the house of Saha Ali and bandaged the wounds. The witness stated that he th en went to the police station after informing it of the incident verbally. On hi s return, according to the witness, he saw his maternal uncles along with his el der sister Halima Khatun and his cousin sister Gumesha Khatun with cut injuries for which they were later shifted to the hospital for treatment. The witness st ated that at about 3 a.m. police from the Rakshasmari Police Out Post visited th e place of occurrence and, amongst others, seized a dagger, a ballam (spear), a rrow fitted with feather, plastic slippers, a switch and a piece of broken wood therefrom. The witness also proved the seizure list (Exhibit-1) with his signatu re thereon as well as the FIR (Exhibit-2). He identified as well as the seized a rticles. In cross-examination, this witness while denying the suggestion to the effect that the version narrated by him at the trial had not been stated before the police in course of the investigation, admitted of not having disclos ed to the police that the accused/ appellant Jalil had forcibly taken Mumtaz Ali to the place of occurrence and that his parents had visited the place of occurr ence after the incident had subsided. P.W.2, Alfaz Ali is not an eye witness to the incident. He, howe 8. ver, deposed about the trespass of accused/appellant Rahman Ali’s cattle into th e paddy field of Alimuddin earlier in the afternoon of the date of the incident. He further stated that later in the evening accused/appellant Rahman Ali, Abdul Jalil, Kalimuddin and others came to the house of Alimuddin and picked up a qua rrel, whereafter, Musa Ali intervened and pacified them. The witness stated as w ell that thereafter accused/appellant Abdul Jalil came and called Alimuddin, Mum taz, Khalek and others to the mosque informing that a meeting would take place t here. The witness further stated that when Alimuddin and others declined to go, accused/appellant Abdul Jalil dragged Mumtaz away by holding his hand and soon t hereafter hearing hue and cry from the house of Mokjul, Musa Ali, Sahjahan and h is (P.W.2) wife rushed to the spot. The witness stated that sometime thereafter Nizam Ali and Sahjahan Ali came back carrying Musa Ali in a severely injured con dition who a little later died in the courtyard of Saha Ali. In cross-examination, this witness disclosed that the night of t he occurrence was a moonlit one and that Saha Ali’s courtyard was soiled with b lood of Musa Ali. He denied the suggestion of not stating before the police that accused/appellant Abdul Jalil had just before the incident come to his place to call Alimuddin, Mumtaz and Khalek for the meeting.

9. P.W.3, Musstt. Amana Khatun, mother of the deceased reiterated t he incident of the afternoon of the date of the occurrence in which the cattle o f accused/appellant Rahman Ali had destroyed the standing paddy of Alimuddin, he r younger brother. The witness stated that in the evening accused/appellant Rahm an Ali. Alimuddin, Kalimuddin, Abdul Jalil and others came to their place and q uarreled with Alimuddin on which her son Musa Ali (since deceased) intervened an d defused the situation, whereafter, all dispersed. A little later accused/appel lant Abdul Jalil returned and called Alimuddin, Mumtaz, Musa and Khalek who were present in her (P.W.3) house for a meeting to be held at the mosque. The witnes s stated that Abdul Jalil held Mumtaz by his hand and took him to the meeting as represented. According to her, a little later she heard hue and cry from the co urtyard of Mokjul on which Musa Ali, Sahajahan Ali and herself went there. The w itness stated that Md. Sahajahan Ali and Mumtaz were thereafter assaulted with ’ dao’ but as she was a little away she could not recognize the assailants. She, h owever, stated to have seen accused/appellant Rahman Ali and Kalimuddin assaulti ng Musa Ali with a ’dao’. She stated as well that it was a moonlit night. While deposing that soon thereafter Musa Ali died in the courtyard of Saha Ali out of the injuries sustained. She stated as well of the injuries sustained by Halema Khatun, Gulesa Khatun, Md. Ali and Mumtaz Ali. In cross-examination, the witness disclosed that the occurrence took place in the courtyard of Mokjul. She denied the suggestion of having omitt ed to mention before the police that she had not seen who had had cut Musa. She denied the suggestion as well that she had not seen the occurrence.

10. The evidence of P.W.4, Malek Ali does not deserve an elaboration as he is not a direct witness of any of the incidents on the date of the occurr ence. P.W.5, Musstt. Shokbhan Nessa is also not an eye witness to the incident, her testimony being confined to the factum of death of Musa Ali. According to h er, the deceased bore cut injuries on his person and his left hand was almost se vered from his shoulder. According to her, before his death the deceased asked f or water which she offered. P.W.6, Dr. Jitendra Saharia who had examined seven injured perso 11. ns including accused/appellant Kalimuddin described the injuries found on their bodies. As would be evident from his testimony, most of the injured examined by him suffered lacerated injuries and tenderness of some parts of their bodies. Ma hammad Ali, however, suffered fracture of the right ulna and Md. Alimuddin Ali compound fracture of the skull. Smastabhan Nessa suffered a fracture of the righ t forearm. The injuries of accused/appellant Kalimuddin was tenderness over left shoulder joint.

12. P.W.7, Dahijul Seikh is a seizure witness of plastic slippers, f our arrows, a hammer fitted with a wooden log etc. effected by the police at the place of occurrence. P.W.8, Md. Ali stated that when on hearing hue and cry from the 13. house of ’accused person’ he went to the place of occurrence Abbas (absconder ac cused) and Mafajul struck him on his shoulder, forehead and heel with a ’dao’. W hile stating that he was treated at the hospital for the injury sustained, the w itness disclosed that in the incident Musa Ali had died and as learnt by him Sa mastabhan, her daughter Halima and Mumtaz Ali had also sustained injuries. In cross-examination, the witness denied the suggestion that Maf azal had not caused any injury to him with a sharp weapon.

14. P.W.9, Nizam Ali while reiterating the incident of trespass of t he cattle of accused/appellant Rahman Ali into the paddy field of Alimuddin and a quarrel consequent thereto in the evening which was resolved by his elder brot her Musa Ali, deposed that soon thereafter accused/appellant Abdul Jalil had com e to their place and called them to a meeting to be held at the mosque. He affir med that when they declined to go, accused/appellant Abdul Jalil took Mumtaz alo ng with him by dragging him by his hand, whereafter, a hue and cry was heard fro m the house of Mokjul. The witness stated that on hearing commotion, he along wi th his brother, Musa Ali, mother Amena Khatun and Sahajahan Ali rushed to the pl ace of occurrence and as they reached the spot, accused/appellant Kalimuddin cam e in a run and inflicted a ’dao’ blow on the left shoulder of Musa Ali. The witn ess stated that accused/appellant Rahman Ali then gave a blow on the head of Mus a whereupon he fell down. The witness testified that even thereafter accused/app ellant Kalimuddin and Rahman Ali dealt several ’dao’ blows on the injured as a r esult whereof he in all sustained 14 cut injuries. The witness stated that Abbas (absconding accused) also struck Mumtaz with a dagger and accused/appellant Mah ir gave a ’dao’ blow to his elder sister who had by then reached the spot. As S amasthabhan also arrived at the place of occurrence, according to the witness, a ccused/appellant Nur Islam, Abbas (absconding accused), Altaf Hussain (abscondin g accused) assaulted her with dagger and ’dao’. That Abbas (absconding accused) also inflicted a cut injury on the hand of Gulecha was also stated by this witn ess. He stated further that his maternal uncle Alimuddin was assaulted on his he ad by accused/appellant Abdul Jalil with a ’lathi’. The witness deposed about se izure of arrow, slippers and hammer by the police as well as the inquest done on the body of deceased Musa Ali. In cross-examination, this witness stated that the incident had taken place in the paddy field. He denied the suggestion of the defence that no incident had taken place on the paddy field near the house of Mafajul. The witne ss admitted that the quarrel had started over the trespass of the cattle of accu sed/appellant Rahman Ali in the paddy field of Alimuddin and destruction of the standing crop.

15. P.W.10, Gulecha Begum deposed that on reaching the place of occu rrence i.e. the house of Maqjul after hearing hue and cry along with her father Alimuddin, mother Samasthabhan and Halima, accused/appellant Abdul Jalil inflict ed a ’dao’ blow on Alimuddin and was joined in the assaults by accused/appellant Mahir, Altaf (absconding accused) and Abbas (absconding accused). The witness s tated that when she tried to intervene, accused/appellant Mahir inflicted a cut blow on her left palm with a ’dao’. The witness in her cross-examination admitte d of not having seen any other incident. She stated that the assault on her fath er Alimuddin had taken place on the road near the house of Maqjul. P.W.11, Musstt. Halima Khatoon stated that in the late evening o 16. f the date of the occurrence while she was sleeping, she heard hue and cry from the house of Maqjul whereafter she along with her mother, father and brothers re ached that place. The witness stated to have seen accused/appellant Rahman Ali and Kalimuddin assaulting her brother Musa Ali. As the injured fell she held him . At that accused/appellant Mahiruddin came and inflicted a ’dao’ blow on her ri ght hand for which she had to take treatment at the Guwabati Medical College & H ospital for 15 days. The witness in her cross-examination clarified that her brother Musa Ali was assaulted in the paddy field which was adjacent to the road.

17. P.W.12, Samastabhan Nessa stated that earlier to the incident, i n the late afternoon of the date of the occurrence there was an altercation betw een accused/appellant Abdul Jalil and Mumtaz Ali on the incident of trespass of the cattle of accused/appellant Rahman Ali into the paddy field of Alimuddin and that deceased Musa Ali pacified them. The witness stated that at about 8/8.30 p .m. Abdul Jalil called away Mumtaz Ali whereafter an incident of assaults took p lace in the house of Maqjul. On hearing hue and cry, according to the witness, s he along with her husband went to the place of occurrence and when they asked ab out the reason for the assaults, accused/appellant Abdul Jalil whacked her husba nd with a plough. The witness stated that subsequent thereto, Nur Islam (abscond ing accused) also dealt a ’dao’ blow on her husband’s head. As she intervened to protect her husband, accused/appellant Mahir Ali inflicted a ’dao’ blow on her arm. According to this witness, accused/appellant Mahir, , Abbas and Altaf also cut her left hand with ’dao;. That Gulecha who was with them was also assaulted on her hand by accused/appellant Mahir was stated by the witness. She deposed about the assault on Mumtaz by the accused persons as well. She stated that dece ased Musa Ali bore several cut injuries and that all those injured had to take m edical treatment.

18. P.W.13, Md. Anar Hussain, a witness to the seizure by the police of a sal wood ’lathi’, a hammer, bamboo switch, a pair of plastic slippers and four arrows vide Exhibit-1 identified the seized articles in the Court.

19. P.W.14, Md. Alimuddin, as the Trial Court has recorded, was unab le to speak and expressed himself by gesticulation. He indicated that accused/ a ppellant Abdul Jalil and Maher Ali had assaulted him on his head and neck.

20. P.W.15, Mamtaz Ali while reiterating the incident of trespass o f the cattle of accused/appellant Rahman Ali into the paddy field of Alimuddin c laimed to have settled the dispute late in the evening in the house of Musa Ali. According to this witness, thereafter, accused/appellant Abdul Jalil called him to a meeting at the mosque and as he accompanied Abdul Jalil and had reached ne ar the house of Maqjul, accused Abbas (absconder) struck him with a dagger from behind. The witness stated that on being assaulted he raised hue and cry on whic h Alimuddin, Musa Ali, Halima, Gulecha Khatun and Samastabhan rushed to the plac e of occurrence. According to this witness, he could not recall as to who assaul ted him thereafter but stated that he sustained two injuries in his right arm-o ne in the left and also on his head and neck. The witness further stated that in the incident Md. Ali sustained injuries on his head and that Halima, Gulecha an d Samastabhan were also injured. He stated that Musa Ali was killed. In cross-examination, this witness stated that he was not aware as to who had assaulted Gulecha, Halima, Samastabhan and Sahajahan Ali. P.W.16, Dr. A.K. Boruah who had performed the post mortem examin

21. ation on the dead body deposed to have found the following injuries: (cid:28)External appearance : A young male body in fresh condition with presence of rigor mortis with the foll owing injuries. Left arm completely separated from the shoulder joint, cutting all the m

1. ajor vessels and nerves. 2. 3. Sharp cut over left forearm on the ulna border of 4 (cid:29) size (bone deep). 3 (cid:29) size sharp cut over the scalp of left knee between little and the viz finger.

4. 5. knee. Other organs are healthy. 3 (cid:29) size sharp cut over the head. 1 ‰ (cid:29) size sharp cut on the right knee and 1 (cid:29) size sharp cut at the left 3 (cid:29) size sharp cut over the scalp left side. Injuries are antemortem in nature and caused by sharp cutting instrument. (cid:29). a result of cutting of left brakod artery. According to him, the death was due to shock and haemorrhage as

22. P.W.17, Ms. Mohela Khatoon deposed that in the late evening of t he date of occurrence accused/appellant Abdul Jalil had called her maternal uncl e Mumtaz Ali from his house and had assaulted him with a ’dao’. She stated futhe r that accused/appellant Nur Islam, Abdul Jalil, Abbas and Altaf (both abscondi ng accused) also assaulted Smasthabhan, Gulecha and Halima when they arrived at the place of occurrence.

23. P.W.18, Keshab Baidya is one of the Investigating Officers who referred to the verbal information on which the GD Entry was made. He stated as well about the inquest conducted by him on the dead body, examination of the wit ness and preparation of the sketch map. He proved the seizure of the aforementio ned items from the place of occurrence and proved the FIR as well. The contradi ctions suggested by the defence vis-à-vis the prosecution witnesses were also pr oved with reference to the Case Diary.

24. P.W.19, Bipin Kr. Bhuyan who had submitted the chargesheet prove d the same to be Exhibit-8. P.W.20, Kamal Ch, Bora who had taken up the investig ation in between on the transfer of the officer concerned in-charge thereof, pro ved the GD Entry (Exhibit-9). The accused/appellants in course of their statements recorded un 25. der Section 313 CrPC denied the correctness of the incriminating circumstances r ecorded at the trial and claimed to be innocent. They, however, did not adduce a ny evidence in defence.

26. We have noted the arguments advanced as well as the evidence on record, both oral and documentary. The incident of assault, as demonstrated by t he materials on record, is evidently a precipitation of intervening events trace able to the trespass of the cattle of the accused/ appellant Rahman Ali into the paddy field of Alimuddin and destruction of the standing crop. The simmering di scontentment that followed since the afternoon of that fateful day lingered till early evening and speciously seem to have subsided on the intervention of the d eceased Musa Ali but did not die down. Evidence is in abundance to establish tha t as the evening grew the accused/appellants along with others assembled at the place of occurrence and accused/appellant Abdul Jalil visited the house of the d eceased to call him (deceased), Alimuddin, Md Khalekuddin and Mumtaz Ali to a m eeting to be held at the local mosque. While Mumtaz accompanied Abdul Jalil, the others stayed back only to rush to the house of Maqjul immediately thereafter o n hearing hue and cry therefrom. The evidence of the prosecution witnesses estab lish beyond doubt the presence of the accused appellants along with Abbas Ali (a bsconder), Altaf Hussain (absconder) and Nur Islam at the place of occurrence be ing armed with sharp cutting weapons. The evidence of P.W.1, P.W.3, P.W.9 and P. W.11 though marginally divergent, in substance substantiated the charge of sever al assaults by accused/appellants Rahman Ali and Kalimuddin Sheikh on deceased M usa Ali with ’daos’ as a result whereof he suffered serious bleeding injures all over his body so much so that his left hand got almost severed from his shoulde r. That the accused/appellants had also assaulted Alimuddin (P.W.14), Mumtaz Ali (P.W.15), Halima Khatun (P.W.11), Gulecha Khatun (P.W.10) and Samastabhan Nessa (P.W.12) is evident from the testimony of these witnesses.

27. Having regard to the backdrop of the incident of assault, the ar med assembly of the accused/appellant and others was unmistakably an unlawful on e as envisaged in Section 141 IPC animated with the common object of wreaking ve ngeance on Md Alimuddin and other members of his group. In this view of the matt er, minor inconsistencies and contradictions ascribing specific roles to them (a ccused/appellants) and their associates in narrating the incident, according to us, would not wholly discredit the prosecution case. This is more so as the pros ecution, to reiterate, has established beyond doubt that the accused/appellants along with Abbas, Altaf and Nur Islam (absconders) were in a body present in the assembly being armed with deadly weapons. The variations in the number of injur ies found on the dead body as disclosed in the ocular evidence, the post mortem report and the inquest report in this premise is also not of any decisive conseq uence against the prosecution. It is in evidence that the place of occurrence is located on the road nearby the paddy field and the house of Moqjul. The referen ce thereof made by the witnesses differently i.e. paddy field, road and house of Moqjul too cannot be construed to be fatal to discard the prosecution case. Ha ving regard to the fact that the prosecution witnesses who had seen the occurre nce and had suffered assaults are rustic villagers, marginal incompatibilities i n their versions while narrating the progression of events comprising the incid ent as a whole, according to us, only lend credence thereto. The omissions made by them in their statements before the police pertaining to the constituent phas es of the incident, having regard to the overall testimony of the prosecution wi tnesses at the trial also do not enure to the benefit of the accused/appellants.

28. On a totality of the above considerations, however, we are of th e view bearing in mind the intervening developments culminating in the incident of assaults, that the accused/appellants cannot be held guilty of the offence o f murder under Section 302 IPC. It is evident from the materials on record that the two factions remained confrontative throughout the day eventually resulting in a spate of assaults unleashed by the accused/appellants and their associates . It is understandable, considering the issue which enraged the assailants, that they were highly provoked by the developments during the day and eventually in a body vented their ire accompanied by assaults on Musa Ali and his family membe rs and relatives. We are, therefore, of the considered opinion that the accused/ appellants are liable to be convicted under Section 304(I) read with Section 14 1/ 147/ 148/149 of the IPC vis-à-vis the offence committed against deceased Musa Ali. They are also liable to be convicted under Section 323/325 read with Secti on 141/147/148/ 149 of the IPC for their assaults on the injured named above. Having regard to the nature of the injuries sustained by Musa Al 29. i, we are of the view that the accused/appellants ought to be sentenced to suffe r ten years of Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default , to suffer six months’ further imprisonment. For their conviction under Section 323/335 read with Section 141/147/148/ 149 of the IPC, in our view, it would me et the ends of justice if they are made to suffer imprisonment for a period of o ne month and six months and fine of Rs. 500/-and Rs. 100/- each, in default to u ndergo imprisonment for 15 days and one month correspondingly. All the sentences would run concurrently.

30. Needless to say, the period already done by the accused/appellan ts in custody would be set off against the duration of imprisonment awarded by t his Court.

31. The appeal is partly allowed to the extent indicated above.