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2012 Supreme(Gau) 372
GAUHATI HIGH COURT
Ujjal Bhuyan, J.
Md.Hasmat Ali, S/o.Late Saja Seikh -Appellant
Versus
State of Assam -Resopndent
Criminal Appeal No. 49 of 2007
Decided On : 21-03-2012
By Advocates: Mr. B.M. Choudhury, Adv. Mr. S. Choudhury, Adv.
By Advocate: Mr. B.S. Sinha, Addl. P. P, Assam
The main legal point established is the requirement of clear evidence to prove complicity in a criminal offence, and the distinction between individual actions and common intention in the context of Section 304(1)/34 IPC.
Headnote:
Criminal Trespass - Conviction under Section 304(1)/34 IPC and Section 447 IPC - Section 304(1)/34, Section 447
Fact of the Case:
The appellants were convicted under Section 304(1)/34 IPC and Section 447 IPC for trespassing into the land of the informant and causing the death of Giasuddin Ahmed.
Finding of the Court:
The court found that the death of Giasuddin was caused by a single blow to the head by one of the accused, leading to a conviction under Section 304(1)/34 IPC. The court also upheld the conviction of one appellant under Section 447 IPC but set aside the conviction of the other appellants under Section 304(1)/34 IPC.
Issues: The key issue was the complicity of the accused in the commission of the offences under Section 304(1)/34 IPC and Section 447 IPC.
Ratio Decidendi: The court found that there was no evidence to implicate two of the appellants in the offence under Section 304(1)/34 IPC, but upheld the conviction of one appellant based on instigation and complicity. The court also upheld the conviction under Section 447 IPC based on evidence of trespass.
Final Decision: The appeal was partly allowed, setting aside the conviction of two appellants under Section 304(1)/34 IPC and reducing the sentence of one appellant under Section 304(1)/34 IPC.
2. One Md. Ilias Ali lodged a first information before the Kalaigaon Police Station naming the appellants and another as accused in the following order:
(1) Md. Hasmat Ali,
(2) Md. Sablus Ali,
(3) Md. Karim Ali,
(4) Md. Tazmul Ali.
3. The informant alleged that in the morning of 11-04-2000 at about 6.30 am, while his son Giasuddin Ahmed and nephew Asanullah were ploughing their land, the accused persons armed with iron rod trespassed into the paddy field and attacked both of them. It was alleged that the accused No. 2 inflicted severe injury on Giasuddin Ahmed’s head by hitting him with an iron rod. The accused No. 2 also inflicted punches and blows on Giasuddin. When the two boys raised a hue and cry, the villagers came to the place of occurrence whereupon the accused persons fled from the place.
4. On receipt of the said first information, Kalaigaon Police Station Case No. 34 of 2000 was registered under Section 447/326/307/34 IPC. The injured Giasuddin Ahmed succumbed to his injuries while undergoing treatment at Guwahati Medical College Hospital. Therefore, Section 302 IPC was also added. The police investigated the case and after completion of the investigation, submitted charge-sheet against the accused persons under Section 447/326/307/34 and Section 302 IPC. On completion of the procedural formalities, the case was committed to the Court of Sessions for trial. The case was thereafter registered as Sessions Case No. 21(DMFT) of 2003.
5. The learned Ad-hoc Additional Sessions Judge, Darrang, Mangaldai framed the charge against the accused persons under two heads, firstly, for criminal trespass into the land of the informant i.e. commission of an offence punishable under Section 447/34 IPC and for committing murder of Giasuddin Ahmed, thereby committing an offence punishable under Section 302/34 IPC. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.
6. To prove the charge, the prosecution examined as many as twelve witnesses. The accused persons adduced the evidence of seven witnesses in their defence. To arrive at a just decision, the learned trial Court also recorded the evidence of eight persons as Court witnesses.
7. On consideration of the evidence adduced and after hearing the parties, the learned Court below came to the conclusion that it was not a case of culpable homicide amounting to murder but a case covered by Section 304(1)/34 IPC. Accordingly, the learned trial Court held all the accused persons guilty under Section 304(1)/34 IPC. The learned trial Court also came to the conclusion that the prosecution was able to prove the charge under Section 447 IPC only against Hasmat Ali (appellant No. 1) and Sublus Ali but failed to prove the said charge against the other two accused persons. Accordingly, all the accused persons were convicted under Section 304(1)/34 IPC, and the accused Nos. 1 and 2 under Section 447 IPC. As indicated above, for the offence under Section 304(1)/34 IPC, all the accused persons were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for another three months. For the conviction under Section 447 IPC, the appellant No. 1 and Sublus Ali were sentenced to pay fine of Rs. 300/-, in default, to undergo simple imprisonment for one month.
8. On a c
