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GAUHATI HIGH COURT
Michael Zothankhuma and Kaushik Goswami, JJ.
Abul Basfar and Anr. – Appellants
versus
State of Assam and Ors. – Respondents
Crl.A./247/2025 and Crl.A./30/2024
Decided on 20.4.2026
Counsel for the Parties:
For the Appellant in Crl.A. 247/2025:Mr. Monzur K. Choudhury, Advocate
For the Appellant in Crl.A. 30/2024:Mr. P.K. Deka, Advocate
For the Respondents: Ms. S.H. Bora, APP, Assam, Mr. M.K. Choudhury, Adv. (R/2), Mr. P.K. Deka, Adv. (R. 2 & 3) and Mr. M. Khan, Adv. (R. 4, 6 & 7)
IMPORTANT POINT
Unintentional homicide is not murder under Section 302, IPC.
Headnote:
Indian Penal Code, 1860 – Section 302 – Murder – Life imprisonment – There is material contradiction and discrepancy in evidence of witnesses – Conviction and sentence of appellant under Section 302 IPC is erroneous and that Section 304 Part-I of IPC would be attracted, keeping in view injuries sustained by deceased – With regard to acquittal of six co-accused persons, there is no connection made by prosecution with regard to co-accused having any knowledge of likelihood of deceased going to be killed by appellant – Attack appears to be sudden, which had erupted from a quarrel that had ensued between them on the early morning of date of incident – Conviction and sentence modified. (Paras 41, 45, 50, 53 and 54)
Result: Appeals disposed of.
JUDGMENT (CAV)
Michael Zothankhuma, J.—Heard Mr. M.K. Choudhury, learned counsel for the appellant in Crl.A.247/2025 and Mr. P.K. Deka, learned counsel for the respondent Nos.2 & 3. Also heard Mr. M. Khan, learned counsel for the respondent Nos.4, 6 & 7 and Ms. S.H. Borah, learned Addl. PP for the State. Mr. P.K. Deka, learned counsel appears for the appellant in Crl.A.30/2024 and Mr. M.K. Choudhury, learned counsel appears for the respondent No.2.
2. Crl.A.247/2025 and Crl. A. 30/2024 have both put a challenge to the impugned judgment dated 22.12.2023 passed by the Court of the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 105/2023. In Crl. A. 30/2024 the appellant Fazar Ali has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.15,000/-, in default simple imprisonment for three months. On the other hand, 6 co-accused have been acquitted of the charge under Sections 302/149 IPC and also under Sections 148/325/326 IPC by the same impugned judgement. Crl. A. 247/2025 has been filed by the informant, who has put to challenge the acquittal of the 6 co-accused by the learned Trial Court, while the appellant in Crl. A. 30/2024 has challenged his conviction under Section 302 IPC.
3. As the challenge in both the appeals relate to the same impugned judgment dated 22/12/2023, the appeals are being decided by this common judgement and order.
4. The facts of the case, in brief, is that prosecution witness-3, (PW-3), who is the younger brother of the deceased Musa Alam, submitted an FIR dated 18/04/2007 to the Officer-in-Charge Jamuguri Police Station, stating that while the deceased and his brother-in-law (Mainul Haque), were ploughing the land that they had taken on lease for 2 years from Bhimlal Sharma and Khargalal Sharma, the accused persons, viz, 1) Najrul Haque, S/o. Unknown, (2) Fazar Ali, S/o. Unknown, (3) Asiya (Achiya) Begum, W/o. Fazar Ali, (4) Ainul Haque, S/o. Md. Fazar Ali, (5) Gulzar Hussain, S/o. Unknown, (6) Chabirul Haque, S/o. Unknown, (7) Sirajul Haque, S/o. Unknown and (8) Jamaluddin S/o. Unknown, residents of Kasomari, P.S. Jamuguri, attacked the deceased Musa Ali and one Mainul Haque with lathis and dao. They both sustained grievous injuries and Musa Ali passed away around 7.30 a.m, while being taken to Dholaibhil Hospital. Pursuant to the FIR, Jamuguri P.S. Case No. 42/2007, under Section 147/148/149/325/326/302 IPC was registered.
5. The case was entrusted to PW-16, who was the First Investigating Officer. Thereafter, on the transfer of PW-16, the case diary was handed over to PW-15, who submitted the charge sheet, wherein, a prima facie case under section 147/148/149/325/326/302 IPC was found established against 1) Md. Fazar Ali, S/o: Lt. Kurjat Ali, 2) Md. Ainul Haque, S/o: Md. Fazar Ali, 3) Md. Gulzar Hussain S/o: Abubakkar Siddique, 4) Smti. Achiya Khatun, W/o: Md. Fazar Ali, 5) Md. Chabirul Haque, S/o: Lt. Abubakkar Siddique, 6) Md. Nazrul Haque Islam, S/o: Md. Idris Ali, all are residents of Kasomari, P.S. Jamuguri, 7) Md. Jamaluddin, S/o: Lt. Amiruddin, R/o: Laltapu, 8) Md. Sirajul Islam, S/o: Md. Idris Ali, R/o: Tengaguri, P.S. Laharighat.
6. The learned Trial Court thereafter framed 5 (five) charges against seven co-accused, viz. (1) Md. Fazar Ali, (2) Md. Ainul Haque, (3) Md. Gulzar Hussain, (4) Smt. Achiya Khatun, (5) Md. Chabirul Haque, (6) Jamaluddin and (7) Nazrul Islam, under sections 148, 325/149, 326/149, 302/149 and 149 IPC, to which the accused pleaded not guilty and claimed to be tried. The eighth co-accused namely, Md. Sirajul Islam was absconding and as such, charges were not framed against him.
7. The learned Trial Court thereafter examined 16 Prosecution witnesses, 1 Defense witness and 2 Court witnesses. The accused persons were also examined under section 313 Cr. P.C. except for the accused Md. Sirajul Islam, who was still absconding. Thereafter, the learned Trial Court came to a finding that the accused Fazar Al
