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2019 DIGILAW 598 (GAU)

Asuruddin Sheikh v. State of Assam

2019-05-14

HITESH KUMAR SARMA

body2019
JUDGMENT : 1. This is an appeal against the judgment and order, dated 23.08.2010 in Sessions Case No. 33/1997, passed by the learned Sessions Judge, Goalpara convicting and sentencing the accused-appellants to rigorous imprisonment for 3 (three) months each under Sections 147/447/323 of the IPC read with Section 149 of the IPC and rigorous imprisonment for 7 (seven) years each under Section 304 Part-II of the IPC read with Section 149 of the IPC. The sentences are directed to run concurrently. 2. Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. A Ahmed, learned counsel for the accused-appellants as well as Mr. BB Gogoi, learned Additional Public Prosecutor, appearing for the State respondent. 3. I have perused the records of the learned trial court including the evidence and the impugned judgment. 4. Briefly stated, the facts of the case is that, on 22.09.1996, an FIR was lodged with the Simlitola Police Patrol Post by the informant Md. Sahid Ali alleging therein that at about 4:30 a.m. on that day, the following accused persons 1. Md. Khalilur Master, 2. Nurul Hoque, 3. Mazibor Rahman, 4. Idris Ali, 5. Lokman Ali, 6. Anowar Ali, 7. Joynal Abedin, 8. Asuruddin Sk., 9. Abdul Rahman, 10. Abul Kalam, 11. Abdul Aziz Miah, 12. Suleman Ali and 13. Sajahan Ali forming an unlawful assembly trespassed into the land of the deceased, Suraj Ali and started to plough the land. When the deceased, Suraj Ali, Md. Mannan Ali, Abdul Baten Ali and Md. Syed Ali tried to prevent the accused, they assaulted the deceased, Suraj Ali and others causing injuries to their persons and necessitating their medical treatment at Hospital. 5. On receipt of the FIR through the Simlitola Police Patrol Post, the Matia Police Station registered a case being Matia P.S. Case No. 62/1996, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused persons. The preliminary investigation was initiated by making a G.D. Entry with the Simlitola Police Patrol Post. The deceased Suraj Ali died in the Hospital due to ante-mortem fracture of skull bone caused by blunt weapon. 6. After exhausting all required legal formalities, the trial commenced for the charges against the accused-appellants and others under Sections 302/147/447/323 of the IPC read with Section 149 of the IPC and after conclusion of the trial, the learned Sessions Judge convicted and sentenced the accused-appellants, as indicated above. 7. 6. After exhausting all required legal formalities, the trial commenced for the charges against the accused-appellants and others under Sections 302/147/447/323 of the IPC read with Section 149 of the IPC and after conclusion of the trial, the learned Sessions Judge convicted and sentenced the accused-appellants, as indicated above. 7. During the course of argument, the learned senior counsel for the accused-appellants has submitted that the evidence on record, as a whole, reveals that although all the appellants participated in the occurrence yet, they did not appear at the place of occurrence together at the same point of time. They appeared at the place of occurrence at different point of time and therefore, there is no evidence of meeting of their minds. The learned senior counsel for the appellants has also submitted that as per the evidence, the blow which caused the ultimate death of the deceased Suraj Ali was inflicted by the appellant No. 2, Mujibor Rahman, and so far the other appellants are concerned, the evidence reveals that the assaults inflicted by them were not fatal for causing the death of the victim. The incident has also taken place in respect of possession of land. In view of such evidence, as per the assaults are concerned, the learned senior counsel for the accused-appellants has submitted that the punishment imposed upon the appellants except appellant No. 1 Mujibor Rahman, for offence under Section 304 Part-II of the IPC is not attracted and they deserve to be acquitted from the charge of the other offences. 8. The medical evidence of PW8 and PW2 respectively show that the deceased did not die instantly and he was first taken to the Doctor at Simlitola Dispensary along with other victims, namely, Abdul Baten, Mannan Ali and Akbar Ali who are all brothers. It appears from the evidence of PW8 that on examination of Abdul Baten, Mannan Ali and Akbar Ali, he found simple injuries on them that were caused by blunt objects. He also deposed that, on examination of deceased Suraj Ali, he found "haematemesis" and referred him to Goalpara Civil Hospital. Such evidence makes it clear that the condition of the deceased Suraj Ali was critical and later on he died. He also deposed that, on examination of deceased Suraj Ali, he found "haematemesis" and referred him to Goalpara Civil Hospital. Such evidence makes it clear that the condition of the deceased Suraj Ali was critical and later on he died. The Autopsy Doctor, examined as PW12, found fracture of right frontal and parietal bones of the skull of the said Suraj Ali and opined that the cause of death was due to shock and hemorrhage resulted from fracture of skull bones which was caused by hard blunt objects and ante mortem in nature. His such evidence could not be discarded during his cross-examination. 9. So far the evidence of PW1, Soleman Ali, the son of the deceased is concerned, the same has been disbelieved by the learned Sessions Judge on the ground of contradictions of his statement before the court with his previous statement. 10. The evidence of PW2, Abdul Mannan shows that at about 5:00 am, on the date of occurrence, when he went out, he saw that Abdul Aziz (appellant No.6) and Asaruddin (appellant No. 1) were ploughing their lands. He also noticed the deceased, Suraj Ali and his son (PW1) and Abdul Baten on the land. Thereafter, he proceeded to the place of occurrence and from about a distance of 40-50 yards, he noticed that the accused Idrish and Nurul were standing with lathis in their hands and Baten and Suraj Ali were trying to prevent them from ploughing their land. At the instigation of the aforesaid Idrish Ali and Nurul and other accused persons present there, they started assaulting Suraj and Baten. The accused Khalil (appellant No. 7), accused Mujibor (appellant No. 2), accused Lokman (appellant No. 3), accused Sahjahan (appellant No. 4), accused Abdul Kalam (appellant No. 5), accused Abdul Aziz (appellant No. 6) and one Anowar and Rahman (not before this court) appeared at the place of occurrence at that time and one of them had hit Suraj Ali on his head by a lathi. The accused Mujibor (appellant No. 2) dealt a blow on the head of Suraj Ali with an iron rod. Thereafter, Suraj Ali fell down on the ground and the remaining accused started to beat him again. The aforesaid accused Idrish and Nurul were acquitted by the learned court below in the absence of any specific evidence against them. 11. The accused Mujibor (appellant No. 2) dealt a blow on the head of Suraj Ali with an iron rod. Thereafter, Suraj Ali fell down on the ground and the remaining accused started to beat him again. The aforesaid accused Idrish and Nurul were acquitted by the learned court below in the absence of any specific evidence against them. 11. The evidence of PW2 receives supports from PW3, PW4 and PW5. So it appears from such evidence that the accused-appellant No. 2, Mujibor Rahman, had inflicted the fatal blow on the head of the accused, ultimately, resulting in his death and the other appellants, referred to above, although inflicted injuries, yet they were on other parts of the body which were not fatal. 12. The learned Sessions Judge in para 20 of his judgment, referring to the evidence on record, has indicated that there are some variation in the evidence of the witnesses as regard the roles played by the other accused-appellants except accused-appellant No. 2, Mujibor Rahman although they were alleged to have assaulted the deceased and other injured persons Baten, Mannan and Akbar. That being so, such evidence is suggestive of the fact that except accused-appellant No. 2 Mujibor Rahman, the other appellants also assaulted the deceased and others and the injuries sustained by them are simple in nature, caused by blunt weapon, punishable under Section 323 of the IPC. 13. There is no evidence on record to show that all the accused-appellants came to the place of occurrence at a time armed with lathis, iron rod, etc, rather, the evidence shows that the appellants Abdul Aziz and Asaruddin were ploughing their lands at the place of occurrence which fact clearly indicates that the other accused-appellants came to the place of occurrence at a later point of time, i.e., after Abdul Aziz and Asaruddin were prevented from ploughing the land by the deceased Suraj Ali and his son. Therefore, in the considered view of this court, there was no meeting of minds before commission of the alleged offences by the accused-appellants. 14. Section 141 of the IPC defines unlawful assembly as follows:- "Unlawful assembly. Therefore, in the considered view of this court, there was no meeting of minds before commission of the alleged offences by the accused-appellants. 14. Section 141 of the IPC defines unlawful assembly as follows:- "Unlawful assembly. An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is (First) To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) To resist the execution of any law, or of any legal process; or (Third) To commit any mischief or criminal trespass, or other offence; or (Fourth) By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." 15. There were only 2 (two) accused-appellants at the place of occurrence and the other accused persons came to the place of occurrence at a later point of time, as indicated earlier. So the requirement of 5 (five) or more persons at the relevant time of the incident to constitute an unlawful assembly did not exist and naturally and logically there was no common object. Except the accused-appellant No. 2, Mujibor Rahman, who was holding an iron rod used to inflict head injury on the deceased, none others were possessing any such weapon which can be termed as deadly weapon being only lathis and which used as an weapon of offence, in ordinary course, unlikely to cause death. Except the accused-appellant No. 2, Mujibor Rahman, who was holding an iron rod used to inflict head injury on the deceased, none others were possessing any such weapon which can be termed as deadly weapon being only lathis and which used as an weapon of offence, in ordinary course, unlikely to cause death. In such facts of the case, this court is of the view that the offence under Section 144 of the IPC has not been committed and as such the offence defined in Section 146 of the IPC is also not committed, the assembly being not an unlawful one as defined in Section 141 of the IPC and as such, not punishable under Section 147 of the IPC. Therefore, the order of conviction recorded by the learned Sessions Judge under Section 147 of the IPC appears to be incorrect ad not based on evidence on record. So far the offence under Section 447 of the IPC is concerned, it has come out from the evidence on record that there was a dispute as regards the possession of the disputed land over which the occurence took place and the deceased and his son resisted them from ploughing that plot of land. Therefore, the evidence shows that the land in question was a disputed one and possession thereof is a question of fact needs to be established by oral evidence which has not been done by the prosecution in this case. Therefore, the order of conviction of the accused-appellants under Sections 447 of the IPC also appears to be not in consistent with the evidence on record and as such, incorrect. 16. As discussed above, the accused-appellants came to the place of occurrence at different point of time and before they came to the place of occurrence, they did not know that a tussle had taken place amongst the deceased, Abdul Baten, Mannan Ali and the accused-appellants Abdul Aziz and Asaruddin. Therefore, it can be said that they acted pursuant to their common object. Therefore, it can be said that they acted pursuant to their common object. That apart, we have already held that there was no unlawful assembly and therefore, Section 149 of the IPC is not attracted in the instant case, and accordingly, the decision rendered by the learned Sessions Judge, appears to be inconsistent with the evidence on record so far commission of the offence punishable under Section 149 of the IPC and as such, incorrect and liable to be set aside. 17. As discussed earlier, there is evidence that the accused-appellant No. 2 Mojibur Rahman inflicted the fatal blow on the head of the deceased Suraj Ali with an iron rod. But, there is no evidence that he had intention to kill the deceased. The learned Sessions Judge has discussed thoroughly the evidence in respect of causing of death of the deceased Suraj Ali and held that the offence committed by the accused-appellant No. 2 Mujibor Rahman falls under Section 304 Part-II of the IPC and this view of the learned Sessions Judge is based on evidence on record and requires no interference. 18. So far the other accused-appellants are concerned, as indicated above in my earlier discussions, there is no evidence to show that the other accused-appellants are guilty of the offence under Section 304 Part-II/147/447 of the IPC read with Section 149 of the IPC. However, they are guilty under Section 323 of the IPC as they caused hurt to the deceased as well as other injured persons with lathis causing simple injuries to their person. Therefore, the accused-appellants, except accused-appellant No. 2 Mujibor Rahman, are acquitted of the charges under Sections 147/447/304 Part-II of the IPC read with Section 149 of the IPC. The other accused-appellants, except accused-appellant No. 2 Mujibor Rahman, are found guilty for offence under Section 323 of the IPC, and accordingly they are sentenced to simple imprisonment for 3 (three) months each under Section 323 of the IPC. So far the accused- appellant No. 2, Mujibor Rahman is concerned, he is convicted and sentenced under Sections 304 Part-II and Section 323 of the IPC and the order of conviction and sentence upon him for the remaining offences are set aside. The accused-appellant No. 2, Mujibor Rahman, is sentenced to simple imprisonment for 3 (three) months for offence under Section 323 of the IPC. The accused-appellant No. 2, Mujibor Rahman, is sentenced to simple imprisonment for 3 (three) months for offence under Section 323 of the IPC. So far the punishment under Section 304 Part-II of the IPC is concerned, he has been sentenced by the learned Sessions Judge to rigorous imprisonment for 7 (seven) years and the same appears to be on the higher side in the background facts of the case. Therefore, the substantive sentence of the accused-appellant No. 2, Mujibor Rahman, is reduced to rigorous imprisonment for 4 (four) years. 19. In view of the above, the appeal is partly allowed setting aside the punishment in respect of some of the appellants as well as by reducing the sentence in respect of some other appellants, as specifically indicated in the forgoing paragraphs. 20. The appeal stands disposed of accordingly. 21. The sentences shall run concurrently in respect of accused-appellant No. 2, Mujibor Rahman, and the period under gone by the accused-appellants during investigation, trial and after the judgment, if any, be set off against the substantive sentence. 22. The accused-appellants shall surrender before the learned court below within 1 (one) month from today to serve out the sentence. 23. Send down the LCR along with a copy of this judgment.