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Gauhati High Court · body

2012 DIGILAW 1212 (GAU)

Akher Ali v. State of Assam

2012-10-15

A.K.GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 1.3.2007, passed by the learned Sessions Judge Darrang, Mangaldoi, in Sessions Case No. 47(DM)/2003. By the impugned judgment and order, the learned Sessions Judge convicted the appellants for the offences under Sections 302/ 323/ 34 IPC and sentenced them to suffer imprisonment for life and pay fine of Rs. 5,000/- each, in default suffer rigorous imprisonment for six months each for their conviction under Sections 302/ 34 IPC. The appellants were also sentenced to suffer rigorous imprisonment for six months each and pay fine of Rs. 500/- each, in default suffer rigorous imprisonment for another period of 15 days, for their conviction under Section 323/ 34 IPC. It was directed that, in the event of realisation of the fine amount, the same shall be paid to the widow of the deceased as compensation and that the sentences shall run concurrently. We have heard Mr. A. Bora, learned Amicus Curiae, appearing for the appellants and Mr. D. Das, learned Additional Public Prosecutor. 2. The prosecution case, in brief, is that, on 21.7.1999 at about 7 A.M., Md. Sayeb Ali @ Sayed Ali (PW 1), approached Mr. Maha Ali (appellant) demanding payment of money, which was due to him, but altercation followed by beating took place between the two. Coming to know about the said incident, Md. Ismail Ali (PW 4), Idrish Ali (since deceased) and Jhoru Seikh (PW 6), appeared to intervene. In the mean time, other appellants, namely Akher Ali, Ahmad Ali and Mahammed Ali also joined the quarrel as a result of which beating took place between both the groups. Mr. Ahmed Ali (absconder) gave a blow on the head of Idrish Ali (deceased) with an axe and he succumbed to the said injury sustained by him. In the said incident, Md. Ismail Ali (PW 4) and Jhuru Ali (PW 6) also sustained injuries on their persons. 3. Md. Sayed Ali (PW 1), lodged the FIR with the Officer-in-Charge, Dhula Police Station. On receipt of the said FIR (Exhibit 5), Police registered a case, under Sections 341/ 325/ 34 IPC and launched investigation into the matter. In the said incident, Md. Ismail Ali (PW 4) and Jhuru Ali (PW 6) also sustained injuries on their persons. 3. Md. Sayed Ali (PW 1), lodged the FIR with the Officer-in-Charge, Dhula Police Station. On receipt of the said FIR (Exhibit 5), Police registered a case, under Sections 341/ 325/ 34 IPC and launched investigation into the matter. During the course of investigation, Police visited the place of occurrence, prepared the sketch map, conducted the inquest in respect of the dead body, forwarded the dead body for post mortem examination, collected the post mortem report, recorded the statement of the witnesses and arrested the accused persons. Police also seized one axe in presence of witnesses. 4. At the close of the investigation, Police submitted charge sheet against the appellants, under Sections 323/ 302/ 34 IPC. In the charge sheet accused Md. Ahmed Ali has been shown as absconder. The offence under Section 302 IPC being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and the learned Sessions Judge framed charges, under Sections 323/ 34 IPC and 302/ 34 IPC against the appellants. The charges were read over and explained to the accused persons to which they pleaded not quality. In order to prove their case, the prosecution examined as many as 11 witnesses, including the Investigating Officer (PW 11), the Medical Officer (PW 10) who examined the injured persons namely Md. Ismail Ali and Md. Jhoru Seikh, and Dr. Kanak Ch. Das (PW 8), who performed the autopsy in respect of the dead body of Md. Idrish Ali. After examination of the prosecution witnesses, the appellants were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce defence evidence. 5. Considering the evidence, on record, the learned Sessions Judge convicted and sentenced the appellants as indicated above. Being aggrieved, the appellants have preferred this appeal. 6. Mr. A. Bora, learned Amicus Curiae, taking this Court through the evidence, on record, has submitted that the prosecution has failed to prove the charges, brought against the appellants, beyond all reasonable doubt by adducing cogent and reliable evidence. Being aggrieved, the appellants have preferred this appeal. 6. Mr. A. Bora, learned Amicus Curiae, taking this Court through the evidence, on record, has submitted that the prosecution has failed to prove the charges, brought against the appellants, beyond all reasonable doubt by adducing cogent and reliable evidence. It is also submitted, by the learned Amicus Curiae, that no ingredient of Section 34 of IPC has been established to substantiate that the appellants, in furtherance of their common intention had caused the death of the deceased and as such the conviction and sentence under Section 302 read with Section 34 IPC can't be maintained. The learned Amicus Curiae has also submitted that there is no sufficient evidence indicating the involvement of the present appellants with the death of Md. Idrish Ali i.e. the deceased inasmuch as all the prosecution witnesses pointed the guilt towards Mr. Ahmed Ali (since absconder). Therefore, it is submitted that, there being no evidence of causing the death of the deceased by the appellants, in furtherance of their common intention, the conviction and sentence, recorded against the appellants, under Section 302/ 34 IPC, is not maintainable. 7. Refuting the said argument, advanced by the learned Amicus Curiae, the learned Additional Public Prosecutor, has submitted that there is sufficient evidence to show that all the accused persons, including the present appellants, had assaulted the deceased and the injured persons. Therefore, it is submitted that the involvement of the present appellants, with the death of the deceased, has been clearly established by the evidence, rendered by the prosecution witnesses and as such the learned Sessions Judge committed no error by awarding the impugned conviction and sentence. In order to appreciate the arguments, advanced by the learned counsel for both the parties, we feel it appropriate to, briefly, scan the evidence on record. 8. Md. Saheb Ali @ Sayeb Ali, who lodged the FIR, (Exhibit 5) as informant, has deposed as PW 1. He stated that the appellant Mr. Maha Ali owed him an amount of Rs. 75/-, being the price of a fishing net and the payment being asked, Mr. Maha Ali, picked up an altercation with him resulting assault. He further stated that Md. Ismail Ali (PW 4), Suru @ Jhuru Seikh (PW 6) and Md. He stated that the appellant Mr. Maha Ali owed him an amount of Rs. 75/-, being the price of a fishing net and the payment being asked, Mr. Maha Ali, picked up an altercation with him resulting assault. He further stated that Md. Ismail Ali (PW 4), Suru @ Jhuru Seikh (PW 6) and Md. Idrish Ali (deceased) also arrived in the place of occurrence to intervene in the said quarrel and Maha Ali and in the meantime Mr. Ahmed Ali (since absconder), Mr. Akher Ali and Mr. Mahmmad Ali also arrived and a quarrel, followed by beating, took place between both the parties. He further stated that Ahmed Ali gave an axe blow on the head of Md. Idrish Ali causing his death and that Md. Ismail (PW 4), Suru @ Jhuru Sheikh (PW 6) sustained injury on the head. This witness clearly stated that accused persons had assaulted Mr. Ismail Ali and Mr. Suru Ali (PW 6) with lath. As stated by PW 1, Idrish Ali, was taken to the Gauhati Medical College and Hospital for treatment, but he succumbed to the injury, on the next day. He has exhibited the FIR, lodged by him, as Exhibit No. 5. According to PW 1, Ahmed Ali (since absconder), who appeared in the place of occurrence after the quarrel had taken place between him (PW 1) and Mr. Maha Ali, gave the fatal blow on the head of the deceased with an axe. 9. Md. Moisan Ali, deposing as PW 2, stated that altercation, followed by beating, had taken place between Maha Ali and the informant (PW 1), when the latter had visited the former's premises regarding demand of money and that he (PW 2) along with Ismail Ali rushed to intervene in the said quarrel. According to this witness, initially, he found Mr. Saheb Ali (PW 1), Mr. Maha Ali and Mr. Ahmed Ali, engaging themselves in the quarrel and that, hulla being raised, Mahammad Ali and Akher Ali also arrived there. He stated that Ismail Ali, Idrish Ali (deceased) and Sum @ Jhuru Sheikh were assaulted on their heads. He also stated that the axe was snatched away, by Batchu Mia (i.e. PW 3) from the hand of Ahmed Ali. This witness did not state anything specific about the role played by the above stated accused persons. He stated that Ismail Ali, Idrish Ali (deceased) and Sum @ Jhuru Sheikh were assaulted on their heads. He also stated that the axe was snatched away, by Batchu Mia (i.e. PW 3) from the hand of Ahmed Ali. This witness did not state anything specific about the role played by the above stated accused persons. From his evidence, it appears that he was present at the place of occurrence from the initial stage i.e. the stage when altercation had taken place between PW 1 and Maha Ali. His failure to indicate as to, who and with what weapon, had assaulted whom, raises doubt about the veracity of his evidence. However, from his evidence, it appears that PW 1 had visited the house of Mr. Maha Ali demanding money and due to this altercation and beating had taken place between them (two) regarding payment of money : 10. Md. Batchu Ali @ Mia deposing as PW 3 stated that he rushed to the place of occurrence, after hearing hue and cry and found Md. Idrish Ali and Md. Ismail, lying in injured condition, at the place of occurrence. He further stated that he found Mr. Ahmed Ali with an axe, in his hand and that he had snatched away the same for handing over to the Police. He further stated that the injured Idrish Ali expired, on the next day, while undergoing treatment in the hospital. This witness did not see the occurrence himself. According to him, accused Ahmed Ali and Nur Islam were found at the place of occurrence. Mr. Nur Islam is not an accused in the case. PW 1 also did not state about the presence of Mr. Nur Islam. 11. Md. Ismail Ali one of the injured person, deposing as PW 4, stated that hearing hulla about the incident, he visited the place of occurence and that he was given a lathi blow, on his head, by Mr. Mahhammed Ali. He further stated that, he being so assaulted, his brother Idrish (deceased) rushed to the place of occurrence and on his arrival, Ahmed Ali (absconder) gave a blow on his head with an axe. He further stated that, though his brother, Md. Idrish Ali, was shifted to the hospital, he succumbed to the injuries on the next date. He also stated that Mr. Johur @ Suru (PW 6) was assaulted by Mahammed Ali. He further stated that, though his brother, Md. Idrish Ali, was shifted to the hospital, he succumbed to the injuries on the next date. He also stated that Mr. Johur @ Suru (PW 6) was assaulted by Mahammed Ali. This witness has indicated the involvement of two accused persons namely Ahmed Ali (since absconder) and Mahammed Ali. 12. Ms. Nuritan Bewa, wife of Idrish Ali, deposing as PW 5, stated that Mr. Ahmed Ali had given a blow, on the head of the deceased, with an axe that her said husband was shifted to Medical College Hospital, where he breathed his last. 13. Md. Jhuru Ali (PW 6) stated that coming to know about the incident, he visited the place of occurrence and found Ismail Ali (PW 4) in injured condition. He further stated that, on being asked, Ismail Ali had told him that Mahammad Ali had assaulted him with a lathi. He further stated that Mahammad Ali had also given a lathi blow on his head. 14. Mr. Khatimuddin (PW 7) and Mr. Nur Ali (PW 9), were also non-official witnesses. PW 7 stated that Md. Idrish Ali succumbed to his injury and that he had heard about the incident. He did not see the occurrence. PW 9, who was an witness to the inquest report (exhibit No. 3) deposed that he saw the accused persons assaulting Idrish Ali who was his son in law with an axe. In his cross-examination, this witness stated that Idrish Ali was assaulted with an axe by Ahmed Ali and that other accused persons were found with Ahmed Ali. He also stated that prior to the said incident, a group clash had taken place between both the parties. From the evidence of this witness, it appears that only Ahmed Ali had assaulted the deceased with an axe. This witness did not say about the role played by other accused persons. His failure to say anything about the role, if any, played by other accused persons, more particularly about Mahammed Ali and also the injuries sustained by Ismail Ali (PW 4), Suru @ Jhuru Ali (PW 6) raises doubt about his presence at the place of occurrence, at the time of the incident. 15. Dr. Kanak Ch. Das (PW 8), who performed the autopsy of Idrish Ali found injury on the vault with fracture on his skull. 15. Dr. Kanak Ch. Das (PW 8), who performed the autopsy of Idrish Ali found injury on the vault with fracture on his skull. He opined that the head injury was the cause of death of the deceased and that the said injury was caused by heavy blunt object. This opinion of the Medical Officer suggests the use of a heavy object, like an axe. All the prosecution witnesses also stated that Mr. Ahmed Ali gave blow, on the head of the deceased, with an axe. Dr. Jamini Sarma (PW 10), who examined Ismail Ali (PW 4) and Md. Jhuru Ali (PW 6), found the following injuries. Injurvon the person of Ismail Ali: Laceration over right parietal scalp: Size-1 cm x cm x cm. Multiple tenderness. Injuries are simple and caused by blunt weapon. Injury on the person of Jaharu Sheikh: Laceration over right parietal scalp. Size: 1 cm x cm x 1/2 cm. Multiple tenderness. Injuries are simple and caused by blunt weapon From the said medical evidence, sufficient corroboration is found in the evidence of PW 1, PW 2, PW 4 and PW 6 to believe that the PW 4 and PW 6 were assaulted by accused Mahammed Ali and that the deceased sustained fatal blow on his head, caused by a blunt heavy object. 16. A careful scrutiny of the evidence, on record, reveals that, initially, a quarrel, followed by assault, took place between the informant and Mr. Maha Ali, in connection with demand of money and for making such demand the informant had visited the premises of Mr. Maha Ali. Therefore, it was the informant, who had visited the house of Mr. Maha Ali, wherein the quarrel had taken place. PW 2 also stated that the quarrel had initially taken place between the PW 1 and Mr. Maha Ali. Both PW 1 and PW 9 also stated that the quarrel and beating took place between both the parties. Hence, it is not the case that the appellants had, initially, attacked the informant or the injured persons. In fact, PW 1 also did not state that Mr. Maha Ali had attacked him. What he stated was that a quarrel, followed by beating, took place between them. Hence, there is no specific allegation of causing assault by Mr. Maha Ali. There is no injury report in respect of PW 1. Therefore, it can't be held that Mr. In fact, PW 1 also did not state that Mr. Maha Ali had attacked him. What he stated was that a quarrel, followed by beating, took place between them. Hence, there is no specific allegation of causing assault by Mr. Maha Ali. There is no injury report in respect of PW 1. Therefore, it can't be held that Mr. Maha Ali had assaulted or caused any hurt to PW 1. The other witnesses also did not state anything indicating that Mr. Maha Ali had caused injury to any person. 17. From the evidence of PW 1, who was an eye witness to the entire occurrence, it is clearly found that, when the quarrel between the petitioner and Mr. Maha Ali was going on, the witnesses i.e. PW 4, PW 6 and the deceased rushed to the place of occurrence to intervene in the said quarrel and in the meantime, the appellants namely, Ahmed Ali, Akher Ali and Mahammad Ali also appeared and beating took place between both the parties. Hence, it transpires that the appellants had appeared in the place of occurrence, only after the quarrel between the PW 1 and Mr. Maha Ali had taken place and the witnesses i.e. PW 4, PW 6 and the deceased had joined them. From the above discussed evidence, it is also found that Mr. Ahmed Ali had given a blow on the head of Idrish Ali and Mr. Mahammad Ali had assaulted Mr. Ismail (PW 4) and Suru Ali (PW 6), who sustained injuries. Both PW 4 and PW 6 clearly stated that they were assaulted by none other than Mr. Mahammed Ali. 18. Law is well settled that in order to hold a person quality of an offence read with Section 34 IPC, it must be established that the alleged act was done by more than one person, in furtherance of the common intention of all to commit an offence and that the participation by all the accused persons was to do act or acts in furtherance of that common intention. It is the burden of the prosecution to establish that the participants in the alleged offence or act had shared a common intention to commit a criminal act. Common intention pre-supposes meeting of minds or pre-concert. Of course, common intention may be formed immediately before or at the time of committing the criminal act. It is the burden of the prosecution to establish that the participants in the alleged offence or act had shared a common intention to commit a criminal act. Common intention pre-supposes meeting of minds or pre-concert. Of course, common intention may be formed immediately before or at the time of committing the criminal act. In the case of Gaur Datta Mal & Ors. Vs. State of U.P., AIR 1965 SC 257 , the Supreme Court observed that the essence of Section 34 is to be found in the existence of common intention animating the offenders to do a criminal act in furtherance of common intention. Section 34 IPC embodies the concept of joint liability of several persons, doing a criminal act on the basis of common intention. Therefore, if the act done is the result of a common intention of all persons involved, then everyone, participating in the act or acts would be liable for the offence committed, irrespective of the role played by each of them. The term common intention indicates the state of mind. To apply the provision of Section 34 IPC, intention to do a criminal act jointly must be established. Existence of such intention can be inferred from the facts proved and the attending circumstances of the given case. Therefore, existence of a common plan or meeting of mind of all the accused persons, to commit a particular offence or act and that the alleged act or offence was committed in furtherance of that act, must be proved : 19. In the case at hand, as revealed from the evidence on record, initially the quarrel and beating had taken place between PW 1 and Mr. Maha Ali, regarding money. The other appellants and the absconder were not in the picture. There is nothing to show that they had shared any intention to assault the deceased and the PW 4 and PW 6, who also appeared in the place of occurrence for intervening in the said quarrel and to stop the same. As PW 4, PW 6 and Idrish Ali arrived there, appellants Mr. Mahammad Ali, Mr. Akher Ali, Mr. Maha Ali and Mr. Ahmed Ali (since absconder) also arrived and joined the quarrel. In the said quarrel Ahmed Ali gave a blow on the head of the deceased with an axe, while Mahammed Ali had assaulted the PW 4 and PW 6. 20. Mahammad Ali, Mr. Akher Ali, Mr. Maha Ali and Mr. Ahmed Ali (since absconder) also arrived and joined the quarrel. In the said quarrel Ahmed Ali gave a blow on the head of the deceased with an axe, while Mahammed Ali had assaulted the PW 4 and PW 6. 20. From a close reading of the said evidence and considering the attending facts and circumstances of the case, it can't be inferred that the appellants had any meeting of minds or a plan to assault the deceased and PW 4 and PW 6. It appears that they had assembled in the place of occurrence as a consequence of the quarrel that took place between PW 1 and Mr. Maha Ali and committed the alleged offences, individually, without any common intention to do so. None of them assaulted PW 1, who had initiated the quarrel with Mr. Maha Ali. 21. A plain reading of the evidence, on record, indicates that the intention of PW 1 was to collect money from Mr. Maha Ali, which the latter owed to him. There is not an iota of evidence to indicate that the appellants had any common intention or programme to attack the PW 1 and his persons. Had there been no quarrel between the PW 1 and Mr. Maha Ali and had PW 4, PW 6 and the deceased not have rushed to the place of occurrence and the other appellants i.e. Mahammad Ali, Mr. Ahmed Ali and Mr. Akher Ali would not have participated in the said quarrel. So their participation, in the said incident was an incidental one, without any pre-concert or prior meeting of minds or any plan to assault the injured persons and the deceased. From the above discussed evidence it is found that Mr. Ahmed Ali, after his arrival in the place of occurrence, without having any common intention or prior meeting of minds with any others had individually assaulted the deceased. Similarly, Mr. Mahammed Ali had also assaulted PW 4 and PW 6. In view of the above, in the absence of any premeditated common intention and planned action, the provision of Section 34 IPC cannot be made applicable. Therefore, in our considered opinion, for the offences committed by Ahmed Ali and Mahammed Ali, the other appellants (accused persons) cannot be held liable for the alleged criminal acts done by each of them. In view of the above, in the absence of any premeditated common intention and planned action, the provision of Section 34 IPC cannot be made applicable. Therefore, in our considered opinion, for the offences committed by Ahmed Ali and Mahammed Ali, the other appellants (accused persons) cannot be held liable for the alleged criminal acts done by each of them. Admittedly, accused Ahmed Ali has been absconding. 22. The attending facts and circumstances, lead to the conclusion that the prosecution failed to substantiate and prove, beyond all reasonable doubt, that the appellants, in furtherance of their common intention, had assaulted the deceased and the injured persons. Therefore, the provision of Section 34 IPC can't be applied in the case at hand. 23. In view of the above discussion for the act done by Mr. Ahmed Ali (since absconder) the present appellants can't be held liable. That apart, none of the witnesses have stated anything about the role played by Mr. Maha Ali and Mr. Akher Ali. In the light of the above discussion, the conviction and sentence, recorded under Section 304/ 34 IPC against the present appellants and the conviction and sentence recorded against Mr. Akher Ali and Mr. Maha Ali under Section 323/ 34 IPC can't be maintained. However, we find the prosecution could prove, beyond all reasonable doubt, that Mr. Mahammed Ali had assaulted and caused simple injuries to PW 4 and PW 6. Therefore, the said appellant is found quality of the offence under Section 323 IPC. 24. In view of what has been discussed above, the appeal is partly allowed. The conviction and sentence recorded under Section 302 read with Section 34 IPC is set aside and the appellants are acquitted from the charge of Section 302/ 34 IPC. They be set at liberty forthwith from the liability of the said offence, if not wanted in any other case. The conviction and sentences recorded under Section 323/ 34 IPC against the appellants is also set aside modifying the conviction to one under Section 323 IPC against Mr. Mahammad Ali. Accordingly, the other appellants, except Mr. Mahammad Ali, are acquitted and they be set at liberty forthwith, if not required in any other case. The appellant Mr. Mahammad Ali's conviction, under Section 323 IPC, is maintained without interfering with the sentence recorded against him for the offence under Section 323 IPC. 25. Mahammad Ali. Accordingly, the other appellants, except Mr. Mahammad Ali, are acquitted and they be set at liberty forthwith, if not required in any other case. The appellant Mr. Mahammad Ali's conviction, under Section 323 IPC, is maintained without interfering with the sentence recorded against him for the offence under Section 323 IPC. 25. Before we part with this judgment, we appreciate the assistance rendered by Mr. A. Bora, learned Amicus Curiae. We order that an amount of Rs. 5,000/- be paid to the learned Amicus Curiae as his remuneration, by the Assam State Legal Services Authority. For the sake of brevity, without repeating the discussions made in the Criminal Appeal No. 93 (J)/2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357 AIPC, we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs. 50,000/- be deposited by the State Government with the District Legal Services Authority of Darrang, Mangaldoi, within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is any dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation. (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/-, without delay, in favour of the State Government. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful. Return the LCR. Appeal allowed.