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IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI and Indira Shah, JJ.
Md. Khalilur Rahman, Alias Md. Khalilur Rahman Laskar, S/o Late Haji Badar Ali - Appellant
Versus
State of Assam - Respondent
Crl. Appeal No. 222 of 2005, Crl. Revision Petition No. 718 of 2005
Decided On : 14-07-2016
For the Appellants : Mr. B.C. Pathak, Dr. (Mrs.) M. Pathak, Mr. B. Pathak.
For the Respondent: Ms S. Jahan.
Headnote:
Indian Penal Code,1860 - Sections 304, 302, 162 , 147/148/447/323/324/302/149 – Criminal Procedure Code,1973 - Section 313 - Offence of murder – Examination of accused - Judgment and order passed by learned Ad hoc Additional Sessions in Sessions convicting them under Section 304 Part-II IPC and sentencing them to suffer rigorous imprisonment for three years and to pay fine of each, in default, to undergo rigorous imprisonment for days - Preferred by , informant of Police Station case No. , being aggrieved by acquittal of and under Section 147/148/447/323/324/302/149 IPC and praying for enhancement of conviction and sentence – Held, considered the other two cases cited by Mr. Ahmed. Dr. Ravindra Prakash Mittal (supra) lays the proposition that mere delay in disposal of the appeal cannot afford a ground for non-interference in appeal. Surendra Singh Rautela (supra) lays down the proposition that the High Court, suo-motu in exercise of revisional jurisdiction can enhance the sentence awarded by the trial court and the same is not affected merely because the power has been provided - Evidence on record, court are of the considered opinion that in facts and circumstances of case, learned trial court was correct and justified in convicting accused appellants under Section 304 Part-II IPC. In that view of matter, appeal fails and accordingly, same is dismissed - Plea raised in revision petition for conviction of accused appellants under Section 302 IPC also, accordingly, fails - court in facts and circumstances of case, are also not inclined to impose a sentence for imprisonment for a longer period than that had been awarded by learned trial court as court are of opinion that sentence imposed by learned trial court will meet ends of justice - Consequently, appeal and revision petition are dismissed
Arup Kumar Goswami, J.
Criminal Appeal No. 222/2005 is preferred by Md. Khalilur Rahman @ Khalilur Rahman Laskar and Oliur Rahman Laskar @ Oliur Rahman against the judgment and order dated 31.8.2005 passed by the learned Ad hoc Additional Sessions Judge, Sankar Dev Nagar, Hojai in Sessions Case No. 27(N)/2004 convicting them under Section 304 Part-II IPC and sentencing them to suffer rigorous imprisonment for three years and to pay fine of Rs. 1,000/- each, in default, to undergo rigorous imprisonment for 60 days.
2. Criminal Revision Petition No. 718/2005 is preferred by Md. Shahjahan, the informant of Morajhar Police Station case No. 105/2001, being aggrieved by acquittal of Khalilur Rahman and Oliur Rahman under Section 147/148/447/323/324/302/149 IPC and praying for enhancement of conviction and sentence.
3. Both the Criminal Appeal and the Criminal Revision Petition have been heard together and are being disposed of by this common judgment and order.
4. By an order passed on 6.10.2005 in Misc. Case No. 3251/2005, the operation of the judgment and order dated 31.8.2005 was stayed and the appellants in Criminal Appeal No. 222/2005 were allowed to go on bail of Rs. 30,000/- each with one surety of the like amount to the satisfaction of the Chief Judicial Magistrate, Nagaon.
5. We have heard Mr. B.C. Pathak and Ms. J. Phukan, learned counsel for the appellants in Criminal Appeal No. 222/2005 and the opposite parties in Criminal Revision Petition No. 718/2005. We have also heard Mr. A. Ahmed, learned counsel for the petitioner in Criminal Revision Petition No. 718/2005 and Ms. S. Jahan, learned Additional Public Prosecutor, Assam in both the cases.
6. An ejahar was lodged by the petitioner of Criminal Revision petition No. 718/2005 on 6.8.2001 before the Officer-in-Charge, Morajhar Police Station informing him that at about 7 A.M., 10 accused persons, namely, (i) Md. Khalilur Rahman, (ii) Oliur Rahman, (iii) Abdul Kader, (iv) Bokhai Mia, (v) Bilaluddin, (vi) Faizul Hoque, (vii) Monai Mia, (viii) Razek Ali, (ix) Musst. Rusna Begum and (x) Taslima Begum had assembled armed with spear, lathi, etc., to take forceful possession of the land in his possession and started ploughing. Having witnessed the same, the informant along with the witnesses named therein protested, whereupon accused persons assaulted Alauddin by piercing his chest with a spear and by means of lathi on the head, thereby causing grievous injuries to him. He was sent to Government hospital after informing about the incident in the police station and the injured succumbed to his injuries in the hospital. Based on the said ejahar, Morajhar Police Station Case No. 105/2001 (Ext.6) under Section 147/148/149/447/ 326/325/302 IPC was registered.
7. After completion of investigation police submitted charge sheet (Ext. 5) against the present appellants, Musst. Taslima Begum, Musst. Rusna Begum and Md. Bokhai Mia @ Taher Ali, along with nine others who were shown as absconders.
8. The learned Magistrate split up the case against the absconding accused persons and committed the case against the other accused persons to the Court of Sessions as the offences were exclusively triable by the Court of Sessions. Accordingly, Sessions Case No. 27(N)/2004 was registered. After hearing the parties, charges under Section 147/148/447/323/324/302/149 IPC were framed. Charges being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried.
9. During trial, prosecution examined nine witnesses whereas defence adduced no evidence. The statements of the accused persons were recorded under Section 313 Cr.P.C. The learned trial court, on consideration of the evidence on record, acquitted Musst. Taslima, Musst. Rusna and Taher Ali of the offences charged. The trial court also held that the prosecution failed to prove the offences under Section 147/148/447/323/324/ 302/149 IPC beyond reasonable doubt against the appellants but successfully proved
