Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 118 (GAU)

Md. Ali Hussain v. State of Assam

2018-01-24

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : HITESH KUMAR SARMA, J. 1. These appeals have been filed under Section 374 of the Cr.P.C. by the accused- appellants, challenging the judgment and order, dated 08.12.2008, passed by the learned Additional Sessions Judge (FTC) No. 1, Kamrup, Guwahati in Sessions Case No. 236 (K) /2001 convicting the accused-appellant No. 1, namely, Md. Ali Hussain and sentencing him to rigorous imprisonment for 7 (seven) years for commission of offence under Section 304 Part-II of the IPC and the accused-appellant No. 2, namely, Md. Noor Hussain was sentenced to rigorous imprisonment for 5 (five) years for commission of offence under Section 307 of the IPC and to pay a fine of Rs. 2,000/- with a default clause each. 2. As the issues involved in both the appeals are common, I propose to dispose of both the appeals by this common judgment and order, after hearing both the parties. 3. I have perused the appeal memo and the impugned judgment. Also perused the trial court record, including the evidence. 4. The fact leading to the case is that, on 20.07.1997, the informant Md. Sirajuddin Ahmed lodged and FIR with the Goreswar Police Station alleging that on 19.07.1997, at about 7 pm, the accused persons, Md. Ali Hussain, Rustom Ali, Nur Hussain, Faziullah Ali, Rafu Ali and Smti Amirun Begum armed with deadly weapons, criminally trespassed into his house and assaulted his brothers Hasmati Ali and Muslim Uddin, resulting in injuries in their persons. 5. On receipt of the FIR, on the above fats, the Goreswar Police Station registered a case, being Goreswar Police Station Case No. 36/1997, under Sections 147/447/326/307 of the IPC, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused persons, including the present accused-appellants under Section 147/447/325/307/302 of the IPC. It deserves to be mentioned here that the injured Hasmat Ali died during the investigation while undergoing treatment in the Gauhati Medical College and Hospital, and therefore, Section 302 of the IPC was added. 6. In this case, after exhausting all the required formalities, the learned trial court framed a formal charge against the accused persons including the present accused-appellants under Sections 147/447/324/307/302 read with Section 149 of the IPC to which the accused-appellants pleaded not guilty and claimed to be tried. Thereafter, the trial commenced. 7. 6. In this case, after exhausting all the required formalities, the learned trial court framed a formal charge against the accused persons including the present accused-appellants under Sections 147/447/324/307/302 read with Section 149 of the IPC to which the accused-appellants pleaded not guilty and claimed to be tried. Thereafter, the trial commenced. 7. The prosecution examined as many as 15 (fifteen) witnesses and the defence examined 3 (three) witnesses. 8. After closure of the prosecution evidence, the statements of the accused-appellants and others were recorded under Section 313 of the Cr.P.C. and in their such statements they are heard denying the allegations made against them by the prosecution. 9. The prosecution case in brief is that in the morning of 19.07.1997, a quarrel took place between the parties in respect of fishing and consequent upon that, another quarrel took place between Noor Hussain and Abdul Ali at about 3 pm. At about 3 pm, in the evening, all the accused persons assembled on the boundary of the house of the informant. They asked Mumtaj Ali as to why the quarrel took place and then said Mumtaj Ali told them that he would look into the matter next day. The accused persons left for their home. The deceased Hasmat Ali, at that point of time, suddenly started to run after the accused persons and then accused Ali Hussain dealt a blow with a knife in the abdomen of Hasmat Ali and the people assembled there over powered Ali Hussain and Rofu Ali and brought them to the house of the informant. They were detained in the verandah of the informant, and subsequently, they were confined in a room. Meanwhile, when Muslimuddin came out of the house, the accused-appellant Noor Hussain struck a blow upon his head by a sharp object following which he fell down. The injured was taken to the hospital. After four days Hasmat Ali succumbed to his injuries although Muslimuddin survived and was released from the hospital after a prolong treatment. 10. The defence case, as unfolded during cross-examination as well as in the statement under Section 313 of the Cr.P.C, is that the accused persons assembled in the spot for a mutual settlement of a quarrel which took place in the morning and approached Md. Mamtaz Ali being the elder of the family of the informant. But, no settlement could be arrived at. Mamtaz Ali being the elder of the family of the informant. But, no settlement could be arrived at. They were told that there would be a panchayat which would take place on the next day. Then the accused persons left for their house, and then the deceased Hasmat Ali suddenly chased them with a dagger in his house and threatened accused-appellant Ali Hussain. However, the persons who gathered there tried to overpower Hasmat Ali and in the process he received an injury. But, the family members of the Md. Mamtaz Ali detained Ali Hussain and Rofu Ali and later on handed them to the Police. 11. I have scanned the evidence on record. The evidence of PWs 2, 3, 4 and 5 appears to be vital in the decision of this case and has been thoroughly relied upon by the learned trial court while deciding the cases. 12. I have heard Mr. Z Alam, learned counsel for the accused-appellants as well as Mr. BJ Dutta, learned Additional Public Prosecutor. 13. The core issue raised by the learned counsel for the accused-appellant is that on facts although the case is true yet the punishment appears to be on the higher side considering the background on which the alleged offences were committed. 14. The evidence of PWs 2, 3, 4 and 5 taken together makes it appear that it was deceased Hasmat Ali who chased the accused persons while they proceeded towards their house and at that point of time, the accused-appellant Ali Hussain cause injuries to his person with a sharp cut weapon which is described as knife by some of the witnesses and as dagger by some other witnesses. 15. The fact that the deceased Hasmat Ali chased the accused persons and only then the accused-appellant reacted causing injuries to his person, ultimately resulting in his death in the hospital cannot be said to have intended the death of the deceased Hasmat Ali as the evidence makes it appear that it was Hasmat Ali who was the aggressor. 16. In the absence of any intention, as appears from the evidence on record, the conviction recorded by the learned trial court that the accused-appellant Ali Hussain is guilty of the offence under Section 304 Part-II of the IPC appears to be correct and does not require any interference. 17. 16. In the absence of any intention, as appears from the evidence on record, the conviction recorded by the learned trial court that the accused-appellant Ali Hussain is guilty of the offence under Section 304 Part-II of the IPC appears to be correct and does not require any interference. 17. The evidence of the aforesaid witnesses also makes it appear, beyond reasonable doubt, that accused-appellant Md. Noor Hussain attempted to kill PW4, Muslimuddin. The evidence of PW4, Muslimuddin on this fact has been corroborated by the evidence of PWs 2 and 3. The other witnesses, except the Investigating Police Officer and the Medical Officer, are heard saying about the sequence of events leading to the occurrence and it is found from their such evidence that the occurrence took place as a follow-up of the quarrel that took place in the morning in respect of fishing activities from the side of the informant which was put to question by accused-appellants and other persons. 18. The fact remains that the accused-appellants and others went to Mumtaz Ali, the elderly person of the family of the informant for settlement of the matter between them and the accused person were told by him that there would be a meeting to settle the matter on the next day and that before the meeting could be held, the instant occurrence took place. There is no evidence on record to suggest even remotely, that the accused persons including the accused-appellants were the aggressors. The evidence rather shows that while they were told that there would be a meeting to settle the issue on the next day, the accused-appellants and other persons left for their house, meaning thereby that they consented to the meeting to be held on the next day. Therefore, there was no reason for the deceased Hasmat Ali or any other person from the informants side to enter into a further quarrel resulting in injuries of Muslimuddin and death of Hasmat Ali. Therefore, on the basis of the materials on record, it appears that there was an attempt made by the accused-appellant Noor Hussain to kill PW4, Muslimuddin and the evidence of PW4, on such facts, remains unshaken even during the cross-examination. 19. Therefore, on the basis of the materials on record, it appears that there was an attempt made by the accused-appellant Noor Hussain to kill PW4, Muslimuddin and the evidence of PW4, on such facts, remains unshaken even during the cross-examination. 19. The evidence of three different witnesses, on perusal, makes it appear that they have not denied the occurrence; rather they are heard saying about the reasons for which the occurrence took place leading to the death of the deceased Hasmat Ali and injuries to Muslimuddin. 20. That being so, as indicated above, the decision recorded by the learned trial court so far holding the accused-appellant guilty and convicting them appears to be on correct appreciation of evidence on record. As far as the punishment imposed upon the accused-appellants are concerned, as indicated above, the learned counsel for the accused- appellant has submitted that considering the background of the case the sentences imposed upon the accused-appellants are on the higher side. 21. I have considered the facts and circumstances of the case as well as the fact that the case originated in the year 1997 and the same was disposed of on 08.12.2008 and thereafter, the appeals were preferred before this Court and the appeals are almost 9 years old now. 22. Taking the above facts into account, this Court is of the view that if the sentence of rigorous imprisonment for 7 (seven) years imposed upon accused-appellant Ali Hussain is reduced to rigorous imprisonment for 2 (two) years with a fine of Rs. 5,000/- and in default, rigorous imprisonment for 3 (three) months, and if the sentence of rigorous imprisonment for 5 (five) years imposed upon accused-appellant Noor Hussain is reduced to rigorous imprisonment for 6 (months) with a fine of Rs. 5,000/- and in default, rigorous imprisonment for 1 (one) month, will meet the ends of justice. They are, accordingly, sentenced. 23. With the above modification in the sentences, the appeals are partly allowed. 24. Send down the LCR along with a copy of this judgment. 25. The accused-appellants are directed to surrender before the learned trial court within a period of 1 (one) month from today to serve out the sentence. The period already undergone in jail by the accused-appellants during trial and after delivery of the judgment will be set off against the substantive sentence.