Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 501 (GAU)

Rubul Ali and Ors. v. State of Assam

2014-05-08

B.P.KATAKEY, INDIRA SHAH

body2014
Katakey, J. These appeals by 3(three) appellants, who have been convicted by the learned Sessions Judge, Nalbari, vide judgment dated 29.05.2012 passed in Sessions Case No.100/2006, under Section 302 IPC in aid of Section 34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- each and in default to suffer rigorous imprisonment for a further period of 2(two) months, while acquitting them from the charge framed under Section 449/34 IPC. 2. A criminal investigation was set in motion on lodging of a first information report (FIR) on 28.08.2005 by Md. Sarfu Ali, alleging that at about 10.30 night on that date his co-villagers Md. Paddis Ali, (who is not the appellant in the present appeals), Md. Kandura Ali, Md. Asmat Ali and Md. Rubul Ali (appellants in the present appeals) entered their house and stabbed his elder brother Bakharu Ali in the abdomen with a sharp weapon i.e. dagger, causing grievous injuries to him, apart from causing grievous injuries to Nur Islam (who has not been examined as witness). Based on the said FIR, Barama P.S. Case No.61/2005 under Section 448/326/34 IPC was initially registered and thereafter after the death of Bakharu Ali, Section 302 IPC was added. During investigation the police visited the place of occurrence, got Nur Islam examined by the doctor for the injuries suffered by him, recorded the statements of the witnesses, who are acquainted with the facts and circumstances of the case, under Section 161 Cr.P.C, seized sheath of a dagger (Ext.-2), conducted the inquest and sent the dead body of Bakharu Ali for post mortem examination. On completion of the investigation the police submitted the charge-sheet against the appellants and also Paddis Ali under Section 323/307/302/34 IPC. The offence alleged being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Nalbari, vide order dated 05.12.2006 committed the case for trial by the Court of Sessions and accordingly Sessions Case No.100/2006 has been registered and numbered. The learned Sessions Judge, Nalbari on 06.03.2007 framed the charge against all the appellants and also Md. Paddis Ali under Section 449/34 IPC and 302/34 IPC, which charges when read over and explained to the accused appellants, they denied the same and claimed to be tried. Hence the trial commenced. 3. The learned Sessions Judge, Nalbari on 06.03.2007 framed the charge against all the appellants and also Md. Paddis Ali under Section 449/34 IPC and 302/34 IPC, which charges when read over and explained to the accused appellants, they denied the same and claimed to be tried. Hence the trial commenced. 3. During trial the prosecution in order to bring home the charges framed against the appellants, examined 12 witnesses, namely, Md. Chander Ali (PW-1); Md. Nasir Ali (PW-2); Md. Nuruddin Ali (PW-3), eye witness; Md. Sarfu Ali (PW-4), first informant; Md. Mojammil Ali (PW-5); Dr. Prabin Chandra Choudhury (PW-6), who conducted the autopsy on the dead body of Bakharu; Dr. Manoranjan Sarma (PW-7), who medically examined the injured Nur Islam and submitted the injury report (Ext.-4); Mustt. Amila Bibi (PW-8), a co-villager and who is also an eye witness; Md. Samir Ali (PW-9), the brother of the deceased, another witness to the occurrence; Md. Samser Ali (PW-10); Md. Nabin Ali (PW-11) and Sri Bhuban Gohain (PW-12), the Investigating Officer. PWs-1, 2 and 5, however, have been declared as hostile, they having not supported the prosecution case. After recording the depositions of prosecution witnesses, who have been duly cross-examined by the defence, the statements of the accused appellants were recorded under Section 313 Cr.P.C. The defence has also examined one defence witness, namely, Md. Paddis Ali himself. 4. The learned Sessions Judge, Nalbari, upon appreciation of the evidence adduced by the parties, passed the impugned judgment and order, convicting Paddis Ali as well as the present appellants under Section 302/34 IPC, as noticed above. Hence the present appeals. 5. We have heard Mr. N.J. Das, learned counsel for the appellant in Crl.A. No.115/2012 and Dr. B. Ahmed, learned counsel for the appellants in Crl.A. No.206/2012. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor appearing for the State of Assam. 6. The learned counsel appearing for the appellants in both the appeals, referring to the evidence of the eye witnesses, namely, PWs-3, 8 and 9, have submitted that it is evident therefrom that it was Paddis Ali, who has inflicted the dagger blow on the person of the deceased, which has caused the death of the deceased, which is also evident from the deposition of Dr. Prabin Ch. Choudhury (PW-6), who conducted the autopsy on the dead body of the deceased. Prabin Ch. Choudhury (PW-6), who conducted the autopsy on the dead body of the deceased. It has also been submitted that from the deposition of the aforesaid witnesses, namely, PWs-3, 8 and 9, it also appears that though the prosecution, in order to get conviction of the appellants under Section 302 IPC in aid of Section 34 IPC, was required to prove the commission of the offence of murder by the appellants in furtherance of a common intention, the same, however, could not be proved and hence, it has been submitted that the judgment of conviction recorded by the learned Sessions Judge convicting the present appellants under Section 302 IPC in aid of Section 34 IPC needs to be set aside. 7. To a pointed query made to the learned counsel appearing for the appellants as to why the case should not be remanded for framing the charge against them under Section 323/34 IPC, even assuming that the prosecution could not prove sharing a common intention by the appellants, it has been submitted by the learned counsel that the maximum punishment for the offence committed under Section 323 being 1(one) year and the present appellants having already in custody for more than 1(one) year and thereby suffered the punishment for more than the prescribed limit, there may not be any order for framing of the charge and for trial. 8. The learned Addl. Public Prosecutor, on the other hand, supporting the judgment of conviction recorded by the learned Sessions Judge, convicting the appellants under Section 302 IPC in aid of Section 34 IPC, has submitted that it is evident from the proved facts and circumstances that an inference of sharing a common intention to cause death to the deceased by all the appellants along with Paddis Ali can be inferred and hence the learned Sessions Judge has rightly convicted the appellants under Section 302 in aid of Section 34 IPC. Relating to the question of remand for framing the charge under Section 323/34 IPC, the learned Addl. Public Prosecutor has also submitted that the appellants being already in custody for more than 1(one) year, no order for remand and framing of charge under the aforesaid provision of law may be passed. 9. Relating to the question of remand for framing the charge under Section 323/34 IPC, the learned Addl. Public Prosecutor has also submitted that the appellants being already in custody for more than 1(one) year, no order for remand and framing of charge under the aforesaid provision of law may be passed. 9. We have considered the submissions advanced by the learned counsel appearing for the parties and also perused the evidence adduced by the prosecution as well as by the defence. We have also perused the judgment of conviction recorded by the learned Sessions Judge. 10. In the present appeals, we are not concerned with the culpability of Md. Paddis Ali, who has been convicted under Section 302 IPC by the learned Sessions Judge, since he has not preferred any appeal. The present appellants have been convicted by the learned Sessions Judge under Section 302 IPC in aid of Section 34 IPC. PW-3 Md. Nuruddin Ali, who claims to have received injuries during the occurrence on 28.08.2005, in his evidence has stated that on that day accused Rubul and Kandura armed with lathi and Asmat armed with dao, attacked him and one Nur Islam at about 11.30 night when they went out of their house to attend the nature’s call and at that time, hearing the hue and cry raised by them, his father Bakharu Ali (deceased) came out and asked to return home and at that moment Paddis Ali alias Kaddus, who was on the other side of the road, suddenly came running and stabbed his father Bakharu in his stomach by means of a dagger. During cross-examination this witness has confirmed that it was Paddis alias Kaddus, who inflicted the dagger blow on the abdomen of the deceased and thereafter they fled away from the scene. This witness though during examination-in-chief has further stated that his father asked Asmat (appellant No.1 in Crl.A.No.206/2012) why he stabbed him, he has, however, not stated that he saw Asmat inflicting any blow by means of the dao or dagger on the person of the deceased. PW-8 Mustt. Amila Bibi, an independent witness and the neighbor of the deceased, in her evidence has also stated about the presence of all the accused persons at the place of occurrence at about 11.30 night and inflicting the dagger blow by Paddis alias Kuddus in the stomach of the deceased by means of a dagger. PW-8 Mustt. Amila Bibi, an independent witness and the neighbor of the deceased, in her evidence has also stated about the presence of all the accused persons at the place of occurrence at about 11.30 night and inflicting the dagger blow by Paddis alias Kuddus in the stomach of the deceased by means of a dagger. PW-9 Samir Ali, the bother of the deceased, has also supported the version of the PW-8 as well as PW-3. 11. Dr. Prabin Ch. Choudhury (PW-6) has proved the post mortem examination report (Ext.-3). This witness has stated that he found one stab injury of the size of 5 cm x 2.5 cm in the abdomen of the deceased resulting in three numbers of punctured wounds in the small intestine. The doctor has opined that the injury was antemortem in nature and the death was caused due to haemorrhage following the stab wound causing injury to the intestine and mesenteric vessels. 12. The prosecution could prove the death of Bakharu because of the injuries found on his person. As noticed above, the appellants have been convicted under Section 302 IPC in aid of Section 34 IPC. The evidence of PWs-3, 8 and 9 also goes to show that none of them have attributed any individual act to the appellants i.e. causing any injury to the deceased by any of the appellants. The prosecution case, in so far as the appellants are concerned, for their conviction under Section 302 IPC, is, therefore, in aid of Section 34 IPC. To convict the appellants in aid of Section 34 IPC the prosecution must prove that the appellants have committed the criminal act in furtherance of common intention of all. In case the prosecution could prove so, then each of the appellant would be liable for that criminal act in the same manner as if it was done by him alone. Direct evident on the common intention is seldom available. Such common intention, however, has to be gathered from the proved facts and circumstances. In case the prosecution could prove so, then each of the appellant would be liable for that criminal act in the same manner as if it was done by him alone. Direct evident on the common intention is seldom available. Such common intention, however, has to be gathered from the proved facts and circumstances. In the instant case, the prosecution could prove the presence of all the appellants along with Paddis alias Kaddus Ali near the house of the deceased on the night of 28.08.2005 carrying either the bamboo lathi or dagger, quarrel of the present appellants with Nuruddin and Nur Islam while they came out of their house to attend the nature’s call, coming out of the deceased from their house on hearing the cry of PW-3 and Nur Islam, asking the PW-3 and Nur Islam not to quarrel with the appellants and to go back home and inflicting a dagger blow on the abdomen of the deceased by Kaddus alias Paddis Ali by means of a dagger coming from other side of the road. 13. As discussed above, the charge having been framed under Section 302/34 IPC the prosecution has to prove that all the appellants shared a common intention, which may even occur at the spur of the moment but before commission of the crime, to kill Bakharu Ali (deceased). The aforesaid proved facts and circumstances though may leads to the inference that they shared a common intention to assault PW-3, but it cannot be said that they shared a common intention, either before or at the spur of the moment, to kill Bakharu Ali (deceased). Paddis Ali, who according to the prosecution is the main assailant, was in fact waiting on the other side of the road and suddenly came and inflicted the dagger blow on the person of the deceased, who came out after hearing the cry of PW-3 and Nur Islam. 14. This leads to the question as to whether the case may be remanded to the learned Sessions Judge, for framing the charge against the appellants under Section 323/34 IPC, having regard to the medical report (Ext.-4) proved by Dr. Manoranjan Sarma (PW-7), who has recorded the opinion that the injuries found on the body of Nur Islam are simple in nature. The appellants are in custody since 29.05.2012, i.e. from the date of judgment of conviction. Manoranjan Sarma (PW-7), who has recorded the opinion that the injuries found on the body of Nur Islam are simple in nature. The appellants are in custody since 29.05.2012, i.e. from the date of judgment of conviction. The maximum sentence of imprisonment for the offence committed under Section 323 IPC being 1(one) year, we do not propose to remand the matter to the learned Sessions Judge for framing the charge under Section 323/34 IPC, they having already served out the maximum sentence awardable under the said provision of law. 15. In view of the aforesaid discussion, the judgment of conviction dated 29.05.2012 recorded by the learned Sessions Judge, Nalbari, in Sessions Case No.100/2006, in so far as the appellants are concerned, is set aside. The appellants are directed to be released from custody forthwith, if not wanted in any other case. 16. The appeals are accordingly allowed, as indicated above. 17. Registry is directed to send down the records.