Ansari, J.
1. By the impugned judgment and order, dated 6.1.2000, passed by the
learned Sessions Judge, Morigaon, in Sessions Case No. 12/1997, the
accused-appellants stand convicted under Sections 302 and 323 read with
Section 149 IPC and each of them stand sentenced to suffer, for their
conviction under Sections 302/149, imprisonment for life with fine of Rs. 2000/-
each and, in default of payment of fine, rigorous imprisonment for a further
period of six month and to suffer, for their conviction under Sections 323/149
IPC, rigorous imprisonment for three months.
2.The case against the accused-appellants, as unfolded at the trial, may,
in brief, be stated as follows:
On 29.9.1993 at about 7.30 am, the present accused-appellants along
with accused Nasiruddin and Nizamuddin (since acquitted) came, armed with
dao, lathi, spear, etc., to the land of Abdul Khaleque, where Abdul Khaleque
used to reside with his family by constructing a house and asked Abdul
Khaleque and his family to leave, but Abdul Khaleque reacted by saying that
he had already sold the land to Ramzan Ali and his family and Ramzan Ali and
his family would not go out, whereupon the accused-appellant, Makbul,
ordered the other accused, accompanying him, to beat Ramzan and others
and turn them out of the house. On being so asked by the accused/appellant,
Makbul, the other four accused persons assaulted Abdul Khaleque with lathis
and when Ramzan came forward, he was given blow with a dao on his left
shoulder by the accused-appellant, Harej Ali, and the accused/appellant,
Hanif, stabbed Ramzan with a spear on his chest. On alarm being raised, the
accused-appellants fled away from the scene leaving Abdul Khaleque and
Ramzan Ali in injured condition at the place of occurrence. Both the injured
were taken to Jagiroad Police Station and therefrom, they were sent to
Jagiroad Hospital. While injured Abdul Khaleque survived, injured Ramzan
succumbed to his injuries. Abdul Khaleque_s brother, Abdul Jabbar, lodged a
written Ejahar (Ext.1) at the said police station. Police accordingly registered a
case and, on completion of investigation, laid charge-sheet against all the
accused persons aforementioned including the accused-appellant under
Sections 147/148/149/447/448/326/302 IPC.
3.During trial, when the charges framed under Sections 147,148 and 326
as well as 302 read with Section 149 IPC were explained to the accused
persons, they pleaded not guilty thereto, the case of the defence being, in
brief, thus : The land, where the alleged occurrence took place, used to be in
the possession of accused Makbul Hussain, father of the accused Hanif Ali,
Hariz Ali, Nizamuddin and Nasiruddin alias Nasir, and on the day of
occurrence, at about 7.00 am, when the accused Nasiruddin, Nizamuddin,
Hanif and Hariz were in their house along with their mother, Mustt. Haliman
Nessa, Abdul Khaleque along with Ramzan Ali and others came to accused
Maqbuls house and asked the members of his family to get out of the house,
but when Maqbuls family members refused to leave, they were attacked by
Abdul Khaleque and Ramzan. When Abdul Khaleque (PW-3) attempted to
assault accused, Nasir, with a spear, the spear accidently fell on Ramzan and
caused injury on his person. The other accused persons too, namely, Nasir
and Hanif, sustained injuries and were medically examined. Thus, Ramzan
(since deceased) and Abdul Khaleque were the aggressors and the accused
persons were completely innocent. The defence also adduced evidence by
examining 5 witnesses.
4.On conclusion of the trial, the learned trial Court, on finding the accused
persons, facing the trial, guilty of the charges framed against them under
Sections 302 and 323 read with Section 149 IPC, convicted the present
accused-appellants accordingly and passed sentences against them, as
hereinabove mentioned, but on account of the fact that the two of the accused
persons facing the trial, namely, Nasiruddin and Nizamuddin, were found
below the age of 16 years on the day of occurrence, they were released on
probation of good conduct for two years. Hence, this appeal has been
preferred by those accused-appellants, namely, Maqbul Hussain, Hariz Ali and
Hanif Ali, against whom sentences, as indicated hereinabove, have been
passed. As this appeal does not relate to accused Nasiruddin and Nizamuddin
aforementioned, we do not deal with the legality or otherwise of their
conviction.
5.We have heard Mr JM Choudhury, learned senior counsel, assisted by
Mr BM Choudhury, appearing for the accused-appellants, and Mr FH Laskar,
learned Additional Public Prosecutor, Assam.
6. In support of their case, prosecution examined altogether 10 witnesses
and out of them PW-2 (Nurul Islam), PW-3 (Abdul Khaleque), PW-5 (Jaigun
Nessa) and Abdul Rashid (PW-8) have been examined as eye witnesses to
the alleged occurrence.
7. Let us, first, deal with the evidence of Dr. Jugal Chandra Kalita (PW-6),
who held autopsy over the dead body of Ramzan Ali on 30.9.1993. This
witness's findings are as follows:
EXTERNAL APPEARANCE: A dead body of average built
male, aged about 30 years, with blood-wet clothings and a tourniquet in
situ in left upper arm above a transverse incised wound around the arm.
Rigor mortis present on lower limbs.
Two major injuries are found (1) An incised injury transversely
dividing almost all muscles, veins and brachial artery except the
Humerus just above the left elbow joint. A Tourniquet is present above
the injuiry. A haemotoma is present between the tourniquet and
shoulder joint (2) A penetrating wound at 4th intercostals space of chest-
wall on left side causing haemotoma left lung and left side
haemothoras.
ABDOMEN: (A) walls, peritoneum, mouth, pharynx, esophagus,
small and its contents, large intestine and its contents, liver, spleen,
kidneys, organs of generation, external and internal Healthy. (B).
Stomach and its contents Healthy, full of food matters. (C) Bladder
Healthy, empty
CRANIUM AND SPINAL CANAL: Scalp, skull, vertebrae,
membrane, brain and spinal cord Healthy.
THORAX: (A) Walls, ribs and cartilages A penetrating wound,
size about = slit-like, present in left 4th inter-costal space just left to
nipple line. (B) Pleurae Perforated at the site of the penetrating
wound. (C) Larynx and tracheae right lung Healthy. (D) Left lung
A haematoma present and haemothorax on the same pleural space. (E)
Pericardium, Health, Vessels Healthy.
MUSCLES, BONES AND JOINTS: (A) Injury, disease or
deformity An incised wound on the left arm just above elbow joint
causing division of almost all muscles, brachial artery, veins and
nerves. Deformity absent. (B) Fracture, dislocation absent
8.In the opinion of PW-6, the injuries aforementioned were ante-mortem
in natureand the death was caused due to shock and hemorrhage in addition
to respiratory insufficiency caused by the injuries sustained.
9.The findings of PW-6 and his opinion with regard to the number and
nature of injuries sustained by the deceased, Ramzan, and cause of his death
have not been disputed either by the prosecution or the defence. This apart,
the evidence of PWs.-2,3, 5 and 8 coupled with the evidence of the informant
(PW-1), Abdul Jabbar, make it clear that Ramzan sustained injuries on his
person, he was taken to Jagiroad Hospital, where he succumbed to his
injuries.
10.Thus, the medical as well as the oral evidence on record clearly show
that Ramzan Ali died as a result of the injuries found on his person by PW-6.
11.Bearing in mind what have been pointed out hereinabove, when we
come to the evidence of Abdul Khaleque (PW-3), who was one of the injured,
we find that according to his evidence, he had a little more than 8 bighas of
land and out of the same, he had sold 3 bighas of land to Ramzan (since
deceased) and his brother, Nasir and Matibur, and after purchasing the said
land, Ramzan started leaving there with his wife by constructing a thatched
house thereon and it is on this land that the alleged occurrence took place.
This witness has deposed that on the day of occurrence, i.e., 29.9.1993, at
about 7/7.30 am, when he was ploughing the remaining part of his land near
the place of occurrence, Ramzan, Nur Islam and Rashid were also ploughing
their own land and after some time Ramzan_s wife, i.e. Jaigun Nessa (PW-5)
invited all of them to have rice in her house and all of them including PW-3
came to the house of Ramzan to take rice, but accused Harej, Maqbul, Hanif,
Nizamuddin and Nasiruddin alias Nasir, came their, armed with dao, lathi,
spear, etc., and asked Ramzan, his family members and also PW-3 to leave
the house. PW-3 has also deposed that when he told the accused persons
that since he had already sold the land to Ramzan and his family, he would
not go out, accused Maqbul ordered the other accused persons saying, Beat
these people up and turn them out of the house, whereupon the remaining
four accused persons assaulted him (PW-3), Nasiruddin having given him
(PW-3) a blow with lathi on his head and he (PW-3) fell down. PW-3 has
further deposed that when he (PW-3) fell down on the ground, Ramzan asked
as to why they had assaulted him (PW-3) and at that point of time, accused
Harij gave a blow with dao on Ramzan_s shoulder and accused Hanif stabbed
him with a spear on his chest, whereupon PW-3 and others raised alarm and
the accused persons fled away from the scene. It is in the evidence of PW-3
that injured Ramzan was taken to Jagiroad Police Station and after
questioning him, police sent him to Jagiroad Hospital, but, at about 4.00 pm
that very day, Ramzan died. It also in the evidence of PW-3 that he (PW-3) too
sustained bleeding injury because of a cut in his head and underwent
treatment at the hospital for 3-4 days.
12.Close on the heels of the evidence of PW-3 (Abdul Khaleque), PW-5
(Jaigun Nessa) has deposed that her husband, Ramzan, had purchased from
Abdul Khaleque (PW-3) the land, where she used to live with her husband and
others in a house. As regards the occurrence, PW-5 has deposed that on the
day of occurrence, at about 7.00 am, her husband, Ramzan, accompanied by
Nurul Islam (PW-2) and Abdul Rashid (PW-8), was ploughing the land and
Abdul Khaleque (PW-3) was also ploughing his land located nearby. PW-5 has
also deposed that she called her husband, Ramzan, Abdul Rashid (PW-8),
Nurul Islam (PW-2) and Abdul Khaleque (PW-3) to take their meal and when
they were washing their hands and feet in the courtyard to have their meals,,
the accused persons, namely, Maqbul Hussain, Harej Ali, Hanif Ali, Nasiruddin
alias Nasir and Nizamuddin, came there. Accused Maqbul ordered the other
accused persons to turn them out from the house. PW-5 has further deposed
that Ramzan came to the door steps of the house and told the accused
persons that he would not go out, because he had purchased the land,
whereupon accused Hariz hit Ramzan on his left arm with a dao and Hanif
stabbed Ramzan with a spear on his chest It is in the evidence of PW-5 that
accused, Nasiruddin, hit Abdul Khaleque on his head with a dao and Abdul
Khaleque fell down, she raised hue and cry, whereupon the accused persons
fled the scene with their weapons. It is also in the evidence of PW-5 that they
took Abdul Khaleque and her husband, Ramzan, to hospital, but her husband
died on the very day of occurrence.
13.Broadly in tune with the evidence of PWs. 3 and 5, Nurul Islam (PW-2)
has deposed that at the time of occurrence, he was working along with Abdul
Rashid (PW-8) and the deceased, Ramzan, at the farm house, and Abdul
Khaleque ( PW-3) was also present with them, PW-2 has also deposed that
Ramzan's wife, Jaigun Nessa (PW-5) was, at that time, inside the house, the
accused persons came to the place of occurrence and asked them to go out,
Abdul Khaleque (PW-3) told them that the land and house, in question,
belonged to him, he had sold the same to Ramzan and they would not go.
PW-2 has further deposed that, at this stage, accused Hanif hit Ramzan with a
spear on the left side of his chest and accused Harij gave a blow with dao on
his left hand and the other accused persons hit Ramzan with lathi. It is in the
evidence of PW-2 that accused Nizamuddin hit Abdul Khaleque (PW-3) with a
lathi and after so assaulting Abdul Khaleque (PW-3) and deceased, Ramzan,
the accused persons left, the two injured were, first, taken to Jagiroad police
station and they were taken from there to Jagiroad Hospital, where Ramzan
died.
14.So far as PW-8 (Abdul Rashid), is concerned, his evidence is that he
had been ploughing the land that they had purchased from Abdul Khaleque
(PW-3), who was also ploughing his own land nearby and Abdul Khaleque
(PW-3) had his house on the land, which the deceased, Ramzan, had
purchased and inside the said house was present Ramzan's wife (PW-5)
preparing meals. PW-8 has deposed that at about 7.00/7.30 am, on being
called by Ramzan's wife to take rice, they all came to the courtyard of the
house and when they were washing their hands and feet, accused persons,
armed with lathi, dao and spear, arrived there, accused Maqbul asked the
other accused persons to beat and turn them out of the house, whereupon
accused Nasiruddin hit Abdul Khaleque on his head with a lathi and when
Ramzan offered resistance, accused Harej hit him with a dao on his left hand
and accused Hanif Ali stabbed him on his chest. It is in the evidence of PW-8
that Ismail Ali and others arrived there, the injured were taken to hospital,
where Ramzan Ali died at about 2.00/3.00 pm.
15.Coming to the evidence of PW-1 (Abdul Jabbar), who is the informant in
this case, we find from his evidence that on being informed about the
occurrence by his son, Abu Kasem, he went to Jagiroad Hospital, where he
found Ramzan with his injuries on the left hand and chest and Abdul
Khaleque with cut injuries on his head and, upon making enquiry, he was
informed by Nur Islam (PW-2) and Abdul Rashid (PW-8) that Hariz, Hanif,
Nasir and Nizam had injured them, whereupon he lodged the Ejahar. It is also
in the evidence of PW-1 that he lodged the Ejahar after Ramzan's death.
16.PWs-2, 3, 5 and 8 have been put to cross-examination by the defence
at length. What have, however, remained unshaken in the evidence of these
witnesses is that accused Hanif stabbed Ramzan with a spear on his chest
and accused Hariz gave a blow with a dao on Ramzan_s arm. These are
precisely the two injuries, we notice, which have been found by PW-6 on
Ramzan's dead body. Hence, the evidence given by these witnesses to the
effect that Ramzan was hit by other accused persons with lathi cannot be
believed. Similalrly, the consistent evidence of these witnesses is that Abdul
Khaleque was given a blow on his head with a lathi by Nasir. In this regard,
though PW-5 deposed that Abdul Khaleque was assaulted by the accused
Nasir by a dao, she receives no corroboration of her assertions from any of the
witnesses. It also surfaces unshaken from the evidence of these witnesses
that accused Maqbul Hussain, Hanif, Hariz, Nizam and Naser came to the
place, where the occurrence took place, Hariz had a dao in his hand and Hanif
had a spear with him. As regards the assault on Abdul Khaleque, it is of
immense importance to note that when Khaleque's own evidence is that Nasir
hit him with lathi on his head, PW-5 claims that Khaleque was given a blow
with a dao by accused Nasir. Belying both PW-3 and PW-5, PW-2 claims that
it was accused Nizam, who hit Khaleque with a lathi on his head. PW-8 also
claims that Khaleque was hit with a lathi on his head by accused Nasir.
Situated thus, in our opinion, it is difficult to believe that Abdul Khaleque was
assaulted on his head by accused Nasir and/or accused Nizamuddin.
17.Coupled with the above, the evidence given by PW-2 shows that the
farm house, where Ramzan started living with his wife, was purchased by
Ramzan from Abdul Khaleque along with the land, where the said farm house
stood, whereas the evidence of Khaleque (PW-3) is that after purchasing the
land, in question, Ramzan started living with his wife by constructing a
thatched house thereon. Even the evidence of PW-5 is to the effect that her
husband, Ramzan, had purchased the house standing on the land from
Khaleque meaning thereby that the house, in question, was not built by
Ramzan. This assertion of PW-5 is contrary to what Khaleque claimed. When
this glaring inconsistency in the evidence of the prosecution witnesses is
considered in the light of the evidence, which has clearly emerged from the
record and considered by learned trial Court, we find that not only Halima, wife
of accused Maqbul, but also accused Hanif Ali and accused Nasiruddin were
medically treated for the injuries sustained by them on their persons, the
injuries on Halima were grievous caused by blunt object and the injuries on
accused Hanif and accused Nasir were simple, the same having been caused
by blunt object. These injuries have not been explained by the prosecution
nor is there any explanation discernible, in this regard, from the evidence on
record. The inference, therefore, is that there was mutual assault leading to
the injuries sustained by not only PW-3 (Abdul Khaleque) and Ramzan (since
deceased), but also Halima, accused Harij and accused Hanif.
18.Coupled with the above, there was, admittedly, a cross case filed by the
accused persons with regard to the same occurrence naming Abdul Khaleque
and others as accused. It is also of paramount importance to note that
according the evidence, which has emerged from the cross-examination of
PW-3, is that the land, in question, was an annual patta land and the land had
been under attachment, though he claims that this land was brought under
attachment subsequent to his selling of the land. That there was a dispute
between both the parties with regard to the ownership and possession of the
land is apparent from the evidence on record.
19.What is also impossible to ignore, which we find has not been given
importance to by the learned trial Court, is that according to the evidence of
PWs-2, 3, 5, and 8, both the injured, namely, Ramzan and Abdul Khaleque
were, first, brought to Jagiroad police station. It is in the evidence of PW-3,
who himself was injured, that the police interrogated them and, then, sent
them to hospital and it was at the hospital that in the afternoon, on that very
day, Ramzan died. Thhe FIR was, admittedly, lodged by Khaleque's brother,
Abdul Jabbar (PW-1) after the death of Ramzan, for, the informant himself has
deposed that he lodged the FIR after the death of Ramzan. What was the
initial information, which was given to the police by the said injured and the
alleged eye witnesses accompanying them This question has not been
answered by the prosecution and no endeavour has been made by them to
show as to what was done by the police at the police station before sending
the injured to hospital and as to what information was gathered by the police
by interrogating the injured and those, who had accompanied them to police
station, before they were sent to the hospital.
20.Situated thus, we find that the prosecution has not unfolded the
complete picture of the occurrence at the trial and that the prosecution's case
suffers from suppression of some material facts. What has, however, emerged
unassailed from the evidence on record is that there was a dispute between
the parties with regard to the land, where occurrence took place, both the
parties laid claim of ownership and possession over the land, in question,
persons belonging to both the groups sustained injuries in the occurrence.
Thus, while Ramzan sustained injuries, which caused his death, Khaleque,
accused Hanif, accused Nasir and their mother, Halima did not sustain very
serious injuries except that Halima sustained fracture of her 8th and 9th ribs.
21.In a situation as depicted above, could it be said that the accused
persons, though 5 in number, had formed unlawful assembly with the common
object of intentionally causing the death of Ramzan? The answer to this crucial
question is found in the evidence of the eye witnesses. In this regard, the
evidence of Khaleque (PW-3) is that Maqbul ordered other accused persons,
Beat these people up and turn them out from the house. Jaigun (PW-5)
has deposed in this regard, that accused Maqbul ordered other accused
persons to turn them (Ramzan and others) out of the house. Nurul Islam (PW-
2) attributes no such statement to accused Maqbul and PW-8 has supported
PW-3 by saying that accused Maqbul asked the other accused persons to
beat and turn them (Ramzan and others) out of house.
22.In view of the fact that PW-2, who was one of the persons present at
the place of occurrence, does not support the claim of PW-3 and PW-8 that
Maqbul asked other accused persons to beat and turn out Ramzan and others
from the house and when even PW-5 does not claim that Maqbul had asked
other accused persons to beat them, her evidence, rather, being to the effect
that Maqbul had merely asked other accused persons to turn them out of the
house, we have to determine if the accused-appellant, Maqbul shared any
common object of intentionally causing death of Ramzan and/or any one else.
When a person asks another person to turn a person out of the house, it
logically follows that the instruction and/or order so given is not to kill the
person or cause death of the person. Hence, while it is doubtful, in the face of
the inconsistent evidence given in this regard by the prosecution witnesses,
that Maqbul had ordered other accused persons to turn Ramzan and others
out of the house, yet even if one has to believe the same, the fact remains that
there is no evidence on record that Maqbul asked other accused persons to
kill Ramzan or any one. This apart, though the evidence of the eye witnesses
is to the effect that apart from Hanif and Harij, who gave spear and dao blows
on Ramzan, other accused persons also assaulted Ramzan by lathi, the same
is not supported by the medical evidence on record. The indication, therefore,
is that there was no common object and, consequently, there was no
formation of unlawful assembly. When there is no consistent evidence that
accused Maqbul had asked other co-accused to even beat Ramzan and
others, the possibility cannot be excluded that some of the accused persons,
such as Maqbul, might have intended to merely scare and/or frighten Ramzan,
Khaleque and others cannot be completely ruled out.
23.What follows from the above discussion is that accused Maqbul, Harij,
Hanif, Nasir and Nizam, who were five in number, had no common object and,
hence, there was no formation of any kind of unlawful assembly. So far as
accused Maqbul is concerned, he is neither convincingly proved to have given
any order or instruction to assault any one nor is there any cogent evidence of
his having caused injury to any one. We, therefore, find that his conviction, in
the face of the evidence on record, either under Section 302 and/or Section
323 IPC is not sustainable.
24.Turning, however, to the case of accused-appellants, Hanif and Harij,
we find that the evidence on record convincingly prove that both of them dealt
such blows with deadly weapons, such as, spear and dao with the intent to
cause such injuries, which were likely to cause death. However, these
assaults on Ramzan were in the course of mutual assaults and since there
was mutual assault between the parties, the acts of these two accused-
appellants constituted offence under Section 304 Part-I read with Section 34
IPC inasmuch as both of them shared the intention of causing such injuries on
Ramzan, which could have resulted into his death.
25.In the result and for the reasons discussed above, this appeal partly
succeeds. The accused-appellant, Maqbul Hussain, is held not guilty of the
offence under Section 302 and/or Section 323 IPC and he is acquitted of the
same. He be set at liberty forthwith.
26.The accused-appellants, Hanif and Harej, are held not guilty of the
offence under Sections 302/323/149 IPC, but they are found guilty of having
committed the offence under Section 304 Part-I read with Section 34 IPC and
they stand convicted accordingly. The conviction of the accused-appellants,
Hanif and Harej, shall accordingly stand converted to one under Section 304
Part-I read with Section 34 IPC and they are sentenced to suffer rigorous
imprisonment for 7 years with fine of Rs.1000/- each and, in default of
payment of fine, to suffer rigorous imprisonment for a further period of one
month.
27.With the above observations and directions, this appeal shall stand
disposed of.
28.Send down the LCRs.