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GAUHATI HIGH COURT
J.Sangma, M.Sharma, JJ.
Rustam Ali and Ors. -Appellant
Versus
State of Assam -Respondent
Criminal Appeal No. 140 of 1993
Decided On : 02-02-1995
CRIMINAL APPEAL - MURDER - SECTION 302 IPC - UNLAWFUL ASSEMBLY - SECTION 147/149 IPC - COMMON OBJECT - PRE-PLANNING - PRE-CONSULTATION - PRE-ARRANGEMENT - COLD DELIBERATION - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - SECTION 304 PART II IPC - INTENTION - HEAT OF PASSION - SUDDEN QUARREL - BENEFIT OF DOUBT - CONVICTION ALTERED - SENTENCE REDUCED.
Fact of the Case:
A dispute arose during a village Bichar (dispute resolution meeting) over a security deposit, leading to a fight in which Surman Ali was killed. Six appellants were convicted under sections 147/149/302 IPC for murder by rioting, and three of them were also convicted under sections 323/324 IPC for causing hurt.
Finding of the Court:
The court found that the evidence did not support the finding that the appellants had come to the Bichar with a common object of murdering Surman Ali after pre-consultation, pre-plan, pre-arrangement, and cold deliberation. The court also found that the assault by Abdul Jabbar and Abdul Sattar, who struck Surman Ali with a huja and a dao respectively, was not premeditated and happened in the heat of passion upon a sudden quarrel.
Issues: 1. Whether the four other appellants could be convicted under section 302 IPC for the act of Jabbar and Sattar by applying section 147/149 IPC. 2. Whether the assault by Jabbar and Sattar amounted to murder.
Ratio Decidendi: 1. To constitute an offence under section 146 IPC (rioting), an unlawful assembly is essential. In a sudden and mutual fight, there is no common object, and the accused are to be convicted for their individual acts. 2. Murder is culpable homicide with the intention to cause death or knowledge that death is likely to be caused. When it is reasonably doubtful whether this intention is present, the accused is entitled to the benefit of that doubt and must be acquitted of murder. 3. Culpable homicide not amounting to murder is committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel, and without the accused taking undue advantage or acting in a cruel or unusual manner.
Final Decision: The court set aside the conviction and sentence of the four appellants under section 147/149/302 IPC and acquitted them of those charges. The court also altered the conviction of Abdul Jabbar and Abdul Sattar under section 302 IPC to one under section 304 Part II IPC and reduced their sentence to RI for 6 (six) years.
By judgment delivered on 20.5.93 in Sessions Case No.42/90 the learned Sessions Judge, Karimganj, (Shri IA Ansari) convicted and sentenced the appellants - (1) Rustom Ali, (2) Abdul Sattar, (3) Md. Makmad Ali, (4) Abdul JaMjar, (5) Md. Fachan Ali and (6) Maklis Ali under sectten 302/ 149 IPC for life. Further he convicted and sentenced Abdul Jabbar (appellant No. 4) and Maklis Ali (appellant No.6) under section 324 IPC to R1 for one year and convicted and sentenced Fachan Ali (appellant No. 5) under section 323 DPC to RI for 6 months. There was no sentence of fine. It was ordered that the sentences would run concurrently. All the appellants are serving the sentence in jail.
2. In brief the case for prosecution can be stated thus : On 10.3.85, Abdul Kadir (PW 4) complained to eldermen of village Jakiwalla that his elder cousin brother, Abdul Sattar (appellant No.2) played eve-teasing to his wife, Farzun Nessa. On that complaint the village elders called Abdul Sattar to appear before them at 9/9.30 AM of 11.3.88 for settlement by Bichar. So Abdul Kader and Abdul Sattar and their men came to the place of Bichar. Before starting Bichar, me eldermen (Mohammad, Insan, Yasin, Abdul Khalegue and Surman Ali) who came to hold the Bichar asked each party to make security deposit of Rs.500/-. Sattar took objection to the demand. Surman Ali was the father of Abdul Kader; he d wanted that the security amount should be enhanced. Quarrel then ensued and the appellants (who are party of Abdul Sattar) started assault with dao, lathi, jatria and huja and inflicted injuries on Surman Ali, Insan and Yasin Ali, the three eldermen, and on Kutub Ali. The four injured were produced before PS. The police made GD Entry No. 245 dated. 11.3.88 and sent the injured to Patharkandi Health Centre which in turn sent Surman Ali to Karimganj Civil Hospital, where he died at midnight of 11.3.88. At 1 PM of the next day (12.3.88), Jawid Ali (PW 6) gave FIR (Ext. 1). Upon which Patharkandi PS registered case No.38/88 against the six appellants, Ajimuddin and Abdul Khaleque, who were named in the FIR as accused. In the Court it was GR Case No.177/88. ASI, G. Deka, made inquest report (Ext 3) on 12.3.88 in the hospital and the Doctor (PW2) also did the post mortem on the same day. Daring the day time of 12.3.88, the IO prepared / sketch map of the place of occurrence (Ext. 2) and, after investigation, submitted charge sheet under section 147/148/149/325/326/302 IPC against the six appellants. The CJM of Karimganj committed the case to Sessions Court.
After the Doctor (PW 2) completed the post mortem on Surman's dead body, Abdul Sattar (appellant No. 2) also lodged a cross FIR (Ext.. 4) at 8.30 PM of 12.3.88, giving the names of (1) Farjum Bibi, (2) Md. Rashir Ali, (3) Md. Surman 8 Ali, (4) Md Kutub Ali, (5) Md. Insan Ali, (6) Md. Yasin AM, (7) Md. Jawid Ali, (8) Md. Aptar Ali, (9) Md. Abdul Kadir, (10) Md. Sukkur Ali, (11) Md. Allauddin and (12) Md. Majir Ali as accuseds. The gist of the FIR was this :
"White. Abdul Jabbar and I were returning home in the afternoon of Thursday (10.3.88) Farjun Bibi, the wife of my cousin brother Abdul Kadir, shouted that I had teased her by showing my private part and on the next day (11.3.88) while Maklis Ali and I were proceeding to Makacherra to cut thatch, Tasbir called us from near the house of Surman Ali for Bichar by eldermen for alleged teasing of Farjun Nessa, We came to the place of Bichar; but suddenly Tasbir shouted 'maro saladar' '(kill the bastard). Thereupon the accuseds severely attacked us with lathi, jetha, dao and gun from all sides. We sustained-injuries. Finding no way out we pulled out bamboo posts from the fencing for self defence but took shelter by entering the house of Rustom Ali and then ran to jungle for safety. Hearing our hue and cry my father Samar Ali, uncle Amin Ali, Rustom Ali and Kalai Mia came and took us to Neelam Bazar Hospital. Delay took place in lodging this FIR because I was under
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