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2016 DIGILAW 658 (GAU)

Magar Ali v. State of Assam

2016-07-20

AJIT SINGH, SUMAN SHYAM

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JUDGMENT : Ajit Singh, J. The appellant Magar Ali has been convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation. He has also been convicted under Section 147 and 148 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and two years respectively. The jail sentences have been ordered to run concurrently. 2. According to the prosecution case, on 6.8.2003, at about 3 P.M., a quarrel took place between the co-accused Musaraf Hussain and deceased Abdul Aziz. After the quarrel was over, both went to their respective houses. But after sometime, Musaraf Hussain along with other co-accused persons, namely Abdul Rahim, Haidur Ali, Khalilur Rahman, Mijanur Rahman, Kutubuddin including the appellant, armed with deadly weapons, went to the house of Abdul Aziz. There, all of them assaulted both Abdul Aziz and his brother Sayid Ali with their weapons. They even assaulted Md. Sekender Ali because he was present at the place of occurrence. Abdul Aziz, Sayid Ali and Md. Sekender Ali were then shifted to the hospital for treatment. But Abdul Aziz could not survive the injuries and died in the hospital during treatment. 3. First information report of the incident was lodged at Sarupeta Police Outpost which was forwarded to the Officer-in-Charge of Pattacharkuchi. The police after investigation, charge-sheeted the appellant and co-accused persons, namely Musaraf Hussain, Abdul Rahim, Haidur Ali, Khalilur Rahman, Mijanur Rahman and Kutubuddin. All of them also were tried jointly in the Court of Additional Sessions Judge (FTC), Barpeta vide Sessions Case No.73 of 2004 for offences under Section 232/147/148/302/149 of the Indian Penal Code vide G.R. Case No.133 of 2003. 4. But during trial, after the statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, the appellant absconded. In the result, the learned Additional Sessions Judge (FTC), Barpeta proceeded against the remaining co-accused persons. And vide Judgment dated 26.3.2008, he convicted and sentenced them as under :- Under Section 302/149 of the Indian Penal Code, imprisonment for life and fine of Rs.2000/- each, in default rigorous imprisonment for two months. Under Section 147 of the Indian Penal Code, rigorous imprisonment for one year, and Under Section 148 of the Indian Penal Code, rigorous imprisonment for two years. 5. Aggrieved, co-accused persons, namely (1) Md. Under Section 147 of the Indian Penal Code, rigorous imprisonment for one year, and Under Section 148 of the Indian Penal Code, rigorous imprisonment for two years. 5. Aggrieved, co-accused persons, namely (1) Md. Musaraf Hussain, (2) Md. Abdur Rahim, (3) Md. Hasidur Ali, (4) Md. Khalilur Rahman and (5) Md. Kutubuddin filed Criminal Appeal No.72 of 2008 and a Division Bench of this Court vide judgment dated 25.04.2012 partly allowed the same. The relevant extract of the judgment reads as under :- “64. On the compactus of our forgoing discussion, it can now safely be held that on the faithful afternoon all accused persons went to the place of occurrence which is situated in the close vicinity of the house of the deceased. They went to such place, all of them were armed with lathi/timber etc. and they all assaulted the deceased which ultimately occasioned his death same day in the evening. However, it was accused Musaraf Hussain and Magor Ali who administered the fatal blows on the deceased on the afternoon in question. 65. Now, the question is whether on those facts, established, can we hold the accused persons guilty of offence under Section 147/148/302/149 IPC as has been done by learned Trial Court ? We have already found that though all accused persons assaulted the deceased yet it was accused Magar Ali and Musaraf Ali who reacted rather aggressively in assaulting the deceased on the afternoon in question. 66. But then, those facts do not establish that in assaulting the deceased on the afternoon aforesaid, accused Magar Ali and Musaraf Ali intended to kill him nor can it be said that they had assaulted the deceased with the intention of causing such bodily injury as was likely to cause his death. Therefore, we are unable to persuade ourselves to conclude that on the facts on record, prosecution has established the offence under Section 302 IPC against any of the accused persons. 67. However when accused Musaraf Ali and Magar Ali assaulted the deceased on his head with bamboo stick/timber, they must have the knowledge that their act was such that it was likely to cause death of deceased. Being so, accused Magar Ali and Musaraf Ali cannot escape being found guilty of offence under Section 304 Part-II IPC. 68. 67. However when accused Musaraf Ali and Magar Ali assaulted the deceased on his head with bamboo stick/timber, they must have the knowledge that their act was such that it was likely to cause death of deceased. Being so, accused Magar Ali and Musaraf Ali cannot escape being found guilty of offence under Section 304 Part-II IPC. 68. It is worth-noting that incident in question was a fall out of a dispute over the cattle which harmed deceased and his brother and which was badly beaten by the deceased and his brother. There is also evidence on record to show that there was no previous enmity between the parties to the case under consideration. In fact, a minor altercation ultimately gave rise to an incident as serious as one under consideration. 69. Again there is impeachable evidence on record to show that once the injured Abdul Aziz slipped to swoon, all accused persons poured water on his face to revive his sense and having found that he did not regain his sense, they immediately took the injured to the hospital. These revelations doubly confirm our conclusion that the accused had no intention to cause the death of deceased. Nor had they any intention of causing such bodily injuries as was likely to cause the death of the deceased. 70. However, we have already found that the fatal blows on the deceased were administered by Musharaf and Magar Ali for which they are already held guilty of offence under Section 304 Part-II IPC. On the other hand, there is indisputable evidence to show that all accused persons, their number being six, had been to the place of offence, all armed with weapons. More important, all of them participated in some way or other in the crime under consideration. 71. These are emphatic testimony to the fact that accused persons formed an unlawful assembly at the place of occurrence, common object of which was to cause the offence under Section 304 Part-II IPC and in pursuance of common object of such an unlawful assembly, they caused the death of Abdul Aziz. Being so, all the accused appellants are found guilty of offence under Section 148 IPC. They are also found guilty of offence U/s 304 Part-II/149 IPC as well as and as such, all accused persons stand convicted of offences U/s 148/304 Part-II/149 IPC. 72. Being so, all the accused appellants are found guilty of offence under Section 148 IPC. They are also found guilty of offence U/s 304 Part-II/149 IPC as well as and as such, all accused persons stand convicted of offences U/s 148/304 Part-II/149 IPC. 72. We have already found that the incident in question was a tragic aftermath of a small incident. We have also found that the accused persons got involved in the incident aforesaid without there being any premeditation or any previous enmity. There is also evidence to show that accused took all the measures to save the life of deceased but in vein. 73. In view of above, we are of the opinion that a sentence of R.I. for one year for offence under Section 148 IPC and R.I. for five years with fine of Rs. 2000/- each in default R.I. for another two months for offences under Section 304 Part-II/149 IPC would meet the ends of justice. 74. Accordingly, all the accused persons are sentenced to suffer R.I. for one year for offence under Section 148 IPC and R.I. for five years and a fine of Rs. 2000/- each in default R.I. for two months for offences under Section 304 Part-II/149 IPC. The sentences are to run concurrently. The period which the accused-appellant has already spent in jail is to be set off against the sentences, imposed upon the accused persons. 75. With the above modifications in the judgment present appeal stands disposed of.” 6. It is to be noted that in the above quoted judgment, finding has been given even in respect of the present appellant Magar Ali that at the most an offence under Section 304 Part-II/ 149 and not under Section 302 of the Indian Penal Code would be made out against him and that his case is exactly the same as that of co-accused Musaraf. The Division Bench has, however, maintained the conviction of all the appellants therein and also present appellant under Section 148 of the Indian Penal Code. 7. The appellant was later arrested on 13.02.2014 and proceeded with the trial. The Additional Sessions Judge (FTC), Barpeta, vide judgment dated 16.05.2014 has convicted and sentenced the appellant as aforesaid. It is in this background, the present appeal has been filed. 8. 7. The appellant was later arrested on 13.02.2014 and proceeded with the trial. The Additional Sessions Judge (FTC), Barpeta, vide judgment dated 16.05.2014 has convicted and sentenced the appellant as aforesaid. It is in this background, the present appeal has been filed. 8. The learned counsel for the appellant submits that since the Division Bench vide judgment dated 25.04.2012 has already held that the case of appellant is same as that of co-accused Musaraf, his conviction and sentence under Section 302/149 of the Indian Penal Code also deserve to be set aside and instead he be convicted under Section 304 Part-II/149 of the Indian Penal Code like Musaraf. To this submission, the learned Additional Public Prosecutor has fairly agreed. We too find that case of appellant is exactly the same as that of Musaraf and, hence, he is entitled for the same benefit. 9. We, accordingly, set aside the conviction of the appellant under Section 302/149 of the Indian Penal Code and sentence of imprisonment of life and fine of Rs.10,000/- and, instead, convict him under Section 304 Part-II/149 of the Indian Penal Code and sentence him to rigorous imprisonment for five years and fine of Rs.2,000/-, in default, rigorous imprisonment of two months. Likewise, while maintaining the conviction of appellant under Section 148 of the Indian Penal Code we set aside the sentence of 2 years rigorous imprisonment and reduce it to one year rigorous imprisonment. Needless to mention that jail sentence shall run concurrently. The conviction and sentence of appellant under Section 147 is however affirmed. 10. With the above modification, the appeal is partly allowed.