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2013 Supreme(Gau) 657
IN THE HIGH COURT OF GAUHATI
BROJENDRA PRASAD KATAKEY AND M.R. PATHAK, JJ.
Smt. Ayesha Begam – Appellants
Vs.
Samir Uddin and Ors.- Respondent
AND
Abdul Hannan – Appellant
Vs.
State of Assam – Respondent
Crl.A. Nos. 243 and 255 of 2005 Alongwith Criminal Appeal No. 270/2005]
Decided On: 26.11.2013
Advocate Appeared
For Appellant/Petitioner/Plaintiff: Mr. S.C. Biswas, Mr. A.K. Hussain, Mrs. S.H. Hussain, Mr. K. Hussain in Criminal Appeal No. 243/2005, Mr. B.D. Konwar, Mrs. J.M. Konwar, Mr. M. Sharma, Mr. R. Kalita in Criminal Appeal No. 255/2005, Dr. B. Ahmed, Mr. N. Haque, Mr. S.K. Deori and Mr. K. Uddin in Criminal Appeal No. 270/2005
For Respondents/Defendant: Dr. B. Ahmed, Mr. N. Haque, Mr. H.I. Choudhury, Mr. K. Uddin
For the respondent Nos. 1, 5, 6 & 7, Mr. A.Y. Choudhury
For the respondent Nos. 2, 3 & 4, Mr. K.A. Mazumdar, Addl. P.P., Assam,
for the respondent No. 9 in Criminal Appeal No. 243/2005 and Mr. K.A. Mazumdar, Addl. P.P., Assam in Criminal Appeal Nos. 255 and 270/2005
Headnote:
Indian Penal Code, 1860 – 147, 148, 149, 302, 304, 323, 325, 326, 307 – Criminal Procedure Code, 1973 – Section 378 and 482 – Simple Imprisonment – Hearing and Disposal – Deceased – Accused sentenced to undergo rigorous imprisonment for a period and to pay a fine of default to suffer simple imprisonment accused Abdul Hannan is sentenced to suffer rigorous imprisonment for and to pay a fine default to suffer further rigorous imprisonment for a period – Held, Independent witness to occurrence though in his examination-in-chief did not say who gave what blow on person and by what except saying that he saw accused persons beating Mashuk where he found Mashuks father and his younger brother during cross-examination by accused stated that it was Samir Uddin who first hit Mashuk and on his head by bung another independent witness to the occurrence has also stated that he saw all accused persons beating – Accused Abdul Hannan is sentenced to suffer rigorous imprisonment and to pay a fine default to suffer further rigorous imprisonment for a period of accused persons, namely, Samir Uddin and Abdul Hannan shall be entitled to set off period of detention undergone by them if realized shall be paid to informant – Criminal Appeal is dismissed.
M.R. Pathak, J.
1. Criminal Appeal No. 243/2005 has been filed by Smt. Ayesha Begam, the informant and mother of the deceased Mashuk Ahmed, under Section 378 of the Code of Criminal Procedure, 1973, against the judgment dated 28.09.2005 passed by the learned Sessions Judge, Karimganj, in Sessions Case No. 75/2004, corresponding to G.R. Case No. 1161/2001, arising out of Patharkandi P.S. Case No. 253/2001, acquitting the respondent Nos. 2 to 7 from the charges framed under Sections 148 /149 /447 /323 /302 IPC and convicting the respondent Nos. 1 and 8 under Section 304 Part-II IPC and under Section 323 IPC, respectively, praying for conviction of all the respondents under Sections 148 /149 /447 /323 /302 IPC. Criminal Appeal Nos. 255/2005 and 270/2005 have been filed by the accused, Abdul Hannan and Samir Uddin, (respondent Nos. 8 and 1 in Criminal Appeal No. 243/2005) against the judgment dated 28.09.2005 passed by the learned Sessions Judge, Karimganj, in Sessions Case No. 75/2004, (G.R. Case No. 1161/2001), arising out of Patharkandi P.S. Case No. 253/2001, convicting under Section 323 IPC and Section 304 Part-II IPC, and sentencing them to suffer rigorous imprisonment for 6(six) months and to pay fine of Rs. 500/-, in default, to suffer simple imprisonment of 1(one) month and to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 5,000/-, in default, to suffer simple imprisonment of 6(six) months, respectively.
2. As all the above mentioned 3(three) criminal appeals have arisen out of the same judgment in Sessions Case No. 75/2004, corresponding to G.R. Case No. 1161/2001, arising out of Patharkandi P.S. Case No. 253/2001, those are taken up for hearing and disposal together.
3. Heard Mr. S.C. Biswas, learned counsel for the appellant, Dr. B. Ahmed, learned counsel appearing for the respondent Nos. 1, 5, 6 and 7 and Mr. A.Y. Choudhury, the learned counsel appearing for the respondent Nos. 2, 3 and 4 in Criminal Appeal No. 243/2005; Mr. B.D. Konwar, the learned counsel appearing for the accused appellant in Criminal Appeal No. 255/2005; Dr. B. Ahmed, the learned counsel appearing for the accused appellant in Criminal Appeal No. 270/2005 and also Mr. K.A. Mazumdar, the learned Addl. Public Prosecutor, Assam in all the aforesaid three criminal appeals.
4. Smt. Ayesha Begam (PW-3) lodged an FIR (Ext.-4) with the Officer-in-Charge of Karimganj Police Station (Sadar) on 04.12.2001 alleging that on that day at about 8.30 A.M. the accused persons, namely, (i) Samir Uddin; (ii) Abdul Hannan; (iii) Azir Uddin; (iv) Gias Uddin; (v) Numan Uddin; (vi) Rezan Uddin; (vii) Abdul Jabbar and (viii) Abul Hussain, jointly, by forming an unit, trespassed into the land of the informant and started cutting paddy by force, despite the objection raised. It has further been alleged that the accused persons then assaulted the informant and her family members with dao, lathi, spear, etc. and caused grievous injuries on the person of the informant, her husband and her 3(three) sons. Fearing for the life, the complainant and her family members shouted for help and then nearby people came to the place of occurrence, and taken to Karimganj Civil Hospital where they were admitted. The informant further stated that had the neighbours not arrived, the accused persons would have killed them. The informant further stated that her husband Ismail Ali and her 2(two) sons, namely, Ashik Ahmed and Mashuk Ahmed, are still under treatment in the Karimganj Civil Hospital and that the physical condition of Mashuk Ahmed is very critical, who is still under unconscious state.
5. The Officer-in-Charge of Karimganj Police Station entered the said FIR as G.D. Entry No. 84 and forwarded the same to the Ram Krishna Nagar Police Station as the place of occurrence fell under the said police station, where G.D. Entry No. 68 dated 05.12.2001 was made. The said FIR was then forwarded to the Patharkandi Police Station since the place of occurrence was within
