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2006 DIGILAW 977 (GAU)

Mahibul Haque v. State of Assam

2006-11-08

KETULHOU MERUNO, P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J 1. Heard Mr. HRA Choudhury, learned Senior Counsel for the appellant and Mr. V.S. Sinha, learned Public Prosecutor. 2. In Sessions Case No. 62 (DMFT) 2001 the accused appellant Mahibul Haque and another accused Makibur Rahman were tried for the commission of offence Under Section 448/364/302 IPC r/w Section 34 IPC on the allegation that on 8th July, the two accused persons trespassed into the house of Yachi Ali and kidnapped one Pullong Ali and thereafter in furtherance of their common intention assaulted Pullong Ali. 3. During trial, as many as ten witnesses were examined by the prosecution. One witness was examined as co-witness and the defence examined three witnesses. The learned trial Court convicted the two accused persons and sentenced them to imprisonment for life and to pay fine of Rs. 1000/- each, in default, further imprisonment for 3 months for the offence Under Section 364(A) IPC. The accused persons were also convicted Under Section 304(II) IPC and sentenced to Imprisonment of 5 years and to pay fine of Rs. 1000/- each, in default, to further imprisonment for 3 months. Both the sentences were directed to run concurrently. 4. Dr. Kanak Chandra Das (PW-7) conducted the post mortem over the dead body of the deceased and found as follows: Injury No. 1: Multiple imprint contusion (Railway line contusion) present on the body size varying form 18cmx3cm to 5cmx3cm with contained margin and having healthy skin in between the contused margin present over the back of the chest, abdomen, buttons both lower limbs from thigh to ankle joint and both upper limbs. Few of which are found over lying each other. The colour of the constrained Bluish yellow. No. 2 - One stitched wound present on the base of the right index finger size 3cm long and closed by 3.... Of black silk. No. 3 - One contusion present on the scalp over the right parital bone size 5cmx4cm. No. 4 - One contusion present on the scalp over the left parital bone. Size 5cmx3cm. No. 5 - Contusion present on the scalp over the frontal bone size 4cmx4cm and the scalp contains are yellow bluish in colour. Other organs are healthy. Stomach congested and empty. Opinion : Death was due to shock and haemorrhage resulting from the multiple contains present over the body and head which ante mortem and caused by blunt weapon.)...lathi etc. No. 5 - Contusion present on the scalp over the frontal bone size 4cmx4cm and the scalp contains are yellow bluish in colour. Other organs are healthy. Stomach congested and empty. Opinion : Death was due to shock and haemorrhage resulting from the multiple contains present over the body and head which ante mortem and caused by blunt weapon.)...lathi etc. and homicidal in nature. The medical evidence has not been challenged. 5. Saifun Nessa (PW-1) is an eyewitness to the occurrence and she has deposed that on the date of occurrence the accused appellant entering into her house assaulted Pullong Ali and then dragged him out and after dumping him on the embankment they left the place. 6. Yasin Ali (PW-2) is the unfortunate father of the deceased. He was not present when the incident took place. He was reported that his son Pullong was took to Khandajan by Mahibul and Makibul and assaulted him and thereafter he went there and found his son Pullong lying in an injured condition. The injured was removed to Sipajhar Hospital and then to Mangaldoi Hospital and then to Gauhati Medical College Hospital where the deceased died after five days. 7. Muslim Ali (PW-3) is the uncle of the deceased and he has deposed that the two accused came in search of the deceased and he allowed them to meet him. The witness categorically stated that the accused persons took the deceased by force. 8. PW-4 is the mother of the deceased and according to her the deceased went with the accused persons to Khandajan and later on she saw her son lying with injuries. 9. So far the death of the deceased is concerned, it is not disputed or challenged before us. Moreover, we find sufficient evidence to show that the accused persons assaulted the deceased as a result of which the deceased sustained certain injuries and he succumbed to injuries after five days of the incident. The trial Court has also recorded a finding that in furtherance of their common intention they tried to cause death. As such, we concur with the finding of the trial Court that the conviction of the accused appellant Under Section 304(II) IPC needs no interference as it was based on. the evidence and there is ample material on record to establish the prosecution case. 10. As such, we concur with the finding of the trial Court that the conviction of the accused appellant Under Section 304(II) IPC needs no interference as it was based on. the evidence and there is ample material on record to establish the prosecution case. 10. In the present case, we find that the learned trial Judge seems to have been a lot of confusion and misconception as to the provision of Section 448 IPC and 364(A) IPC. As regards charge Under Section 448 IPC the trial Court has this to say: Regarding Section 448 IPC is not proved as all the prosecution witnesses have stated that deceased Pullong has friendly relation with accused persons and their entry in to the house of Pullong is not criminal trespass. So, both the accused persons are acquitted from the charge. On the other hand, the trial Court has convicted the two accused persons Under Section 364(A) IPC. 11. In the present case there is no whisper at the Bar that the accused persons kidnapped Pullong Ali for the purpose of murder. Hence, admittedly Section 364(A) is not attracted. 12. The learned Public Prosecutor tried to submit that the offence may be Under Section 364 IPC itself. From the evidence on record we find that the deceased as well as the accused persons were friends and the deceased had accompanied the accused persons on his own will and there is no force applied. However, the trial Court has also recorded that the accused had no intention to commit murder. Section 364 applies only when the kidnapping is in order to murder, kidnap such victim. 13. Hence, considering the materials on record we hold that the conviction and sentence of the accused appellant Under Section 364(A) IPC is not maintainable. 14. In the result, the appeal is partly allowed. The conviction and sentence Under Section 364(A) is set aside. So far the conviction Under Section 304(II) is concerned, we affirm the same. 15. In the present case, we find although the two accused persons were convicted by the Court below the appeal has been preferred by only one accused appellant Mahibul Hoque. The other convict Makibur Rahman is not before us. However, from the evidence and materials on record we find that both the accused persons stand on the same footing and the evidence against them is identical. The other convict Makibur Rahman is not before us. However, from the evidence and materials on record we find that both the accused persons stand on the same footing and the evidence against them is identical. The question thus arises is whether the benefit accrued on to the appellant Mahibul Hoque can be extended to an accused person, who is not before us. The question was considered by the Apex Court in the case of Pawan Kumar v. State of Haryana 2003 CriLJ 3552 wherein one of the non-appellants Balwinder Singh was extended to the benefit which was granted in favour of the appellant. Admittedly, the illegality for the conviction of the accused appellant Under Section 364(A) IPC and in order to set the matter right inference is called for in favour of non-appellant also otherwise the illegality will be allowed to be perpetuated. 16. In the result, the conviction and sentence entered by the trial Court against the other accused Makibur Rahman Under Section 364(A) is set aside. However, the conviction Under Section 304(II) IPC stands affirmed. Send down the records. 17. The appeal is disposed of as aforesaid.