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2007 Supreme(Gau) 435
IN THE HIGH COURT OF GAUHATI
Hrishikesh Roy, J.
Tafazzul Ahmed @ Tafazzul Ali and Ors.
Vs.
State of Assam
Decided On : 21.06.2007
The central legal point established in the judgment is the assessment of the nature of the assault, the establishment of an unlawful assembly, the specific roles of the accused appellants, and the material contradictions in the evidence regarding the presence and participation of accused appellant No. 6, Abdul Aziz.
Headnote:
Assault - Criminal Law - IPC 447, 323, 304, 148, 149 - The court discussed the evidence and found that the accused appellants were convicted for the commission of offences under Section 447, 323, and 304, IPC, read with Section 148 and 149, IPC. The court analyzed the contradictions in the evidence, the nature of the assault, and the specific roles attributed to the accused appellants, ultimately setting aside the conviction under Section 304, IPC, and sustaining the conviction under Section 323, IPC for accused appellant Nos 1 to 5. The conviction of accused appellant No. 6, Abdul Aziz, was not sustained due to material contradictions in the evidence regarding his presence and participation in the assault.
Fact of the Case:
The case involved an unlawful assembly trespassing into the house of the complainant, assaulting the victims, and resulting in the death of one of the victims after fifteen days. The prosecution's case was based on the assault and the subsequent death of the victim, while the defense denied the involvement of the accused appellants.
Finding of the Court:
The court found that the conviction under Section 304, IPC, was unwarranted due to doubts about the direct cause of death being the assault. The court also held that the accused appellants forming an unlawful assembly and their involvement in the assault was established, setting aside the conviction under Section 304, IPC, and sustaining the conviction under Section 323, IPC for accused appellant Nos 1 to 5. The conviction of accused appellant No. 6, Abdul Aziz, was not sustained due to material contradictions in the evidence regarding his presence and participation in the assault.
Issues: The issues involved the nature of the assault, the specific roles of the accused appellants, the contradictions in the evidence, and the direct cause of the victim's death.
Ratio Decidendi: The court's decision was based on the doubts about the direct cause of the victim's death, the establishment of the accused appellants forming an unlawful assembly and their involvement in the assault, the specific roles attributed to the accused appellants, and the material contradictions in the evidence regarding the presence and participation of accused appellant No. 6, Abdul Aziz.
Final Decision: The court set aside the conviction under Section 304, IPC, and sustained the conviction under Section 323, IPC for accused appellant Nos 1 to 5. The conviction of accused appellant No. 6, Abdul Aziz, was not sustained, and all the accused were ordered to be released forthwith.
Hrishikesh Roy, J.
1. This appeal is preferred against the judgment and order dated 5.2.2004 rendered in Sessions Case No. 76/2004 by the learned Sessions Judge, Karimganj, whereby the accused appellants have been convicted for the commission of offence under Section 447, 323 and 304, IPC, read with Section148 and 149, IPC. On the basis of the aforesaid conviction, the accused appellants have been sentenced to suffer RI for seven years with a fine of Rs. 1000.00 and also to suffer SI for six months by each of them for the offences committed by them under Sections 304, IPC, read with Sections148 and 149, PC.
2. The case set up by the prosecution is that on 30.1.97 at about 2 PM, the accused persons five of whom were named in the FIR formed an unlawful assembly and trespassed into the house of the complainant and assaulted Lutfa Begum by dragging her out from her house. Salma Begum and Mazu Begum came to rescue Lutfa Begum, but the accused appellants also assaulted them.
3. An FIR was logged on the same date by the injured Lutfa Begum and Salma wherein the name of appellant Nos. 1 to 5 were mentioned as assailants who had assaulted the informants Lutfa and Salma.
4. Eventually after fifteen days, on 15.2.97, Lutfa died and accordingly, charge under Section 304, IPC, was also framed against the accused persons.
5. Prosecution examined as many as nine witnesses, defence examined none. It was a case of absolute denial by the defence.
PW-1, Dr. R.N. Das, who conducted the post mortem examination on the dead body of Lutfa deposed in his evidence that no external injury was seen. The body was pale and anemic. According to this witness as the actual cause of death could not be ascertained, certain viscera were kept preserved for forensic analysis.
In cross-examination, this witness stated that he was informed by accompanying person that the deceased was treated at Nilambazar PHC. PW-1 further stated that pale health can be caused by malaria, anemia, etc.
PW-2, Faizur Rahman, is the uncle of the deceased Lutfa. He claimed to be an eyewitness to the incident. He deposed in his evidence that there was an altercation between the son of his elder brother, Ashuk, and the accused appellants over fishing in the nearby pond of his homestead land. Thereafter the accused appellants armed with bamboo 'chota' came pursuing to Ashuk's house. At that point of time, Lutfa, Hamida and Salma came out and offered resistance to the accused appellants in his courtyard. The accused persons had assaulted Lutfa, Hamida and Salma with "Chota" because of which the three girls sustained injuries.
In cross-examination this witness could not say in which part of her body the deceased Lutfa had sustained injuries nor could he state about the injuries sustained by other injured persons. He further stated that Lutfa had fever at that time. He specifically stated that the accused appellant Aziz was not seen at the place of occurrence.
PW-3, Hamida Begum, is cousin of the deceased Lutfa. She is an eye witness to the incident and also stated to have been assaulted by the accused persons.
In her cross-examination Hamida stated that Lutfa had bled from her back. Further this witness stated, in cross-examination, that she will not be able to identify any of the accused appellants even if they are produced before her.
PW-4, Abdul Latif, is an uncle of the deceased and an eyewitness to the incident. He stated in his evidence that the appellants who were armed with lathis and daos hit the deceased Lutfa. He deposed that the accused appellants punched and hit Lutfa with elbows and lathis.
In cross-examination, he has stated that after the incident the deceased suffered from cough and fever and chest pain. Since her physical condition was very bad, she was taken to Karimganj for treatment.
PW-5, Zamal Ahmed, deposed in his evidence that the accused appellant Nos. 4, 5 and 6 had hit the deceased Lutfa with lathis and when Hamida and other girl came out to help Lutfa, they beat the oth
