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2017 Supreme(Gau) 916
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HITESH KUMAR SARMA, J.
Md. Babul Hussain Laskar @ Babul Hussain, Son of Md. Jalal Uddin Laskar - Appellants
VERSUS
State of Assam - Respondent
Criminal Appeal No. 301 of 2014
Decided On : 24-08-2017
For the Appellant :Mr. MG Singh, Mr. SK Singha, Mr. B Kumar, Mr. MK Neog, Mrs. M Deka, Advocates.
For the Respondent: Mr. BJ Dutta, Additional Public Prosecutor.
Headnote:
Indian Penal Code, 1860 – Sections 148, 323, 447, 436, 149 and 147 – Criminal Procedure Code, 1973 – Section 313 and 374 – Simple Imprisonment – Accused Appellants – Learned counsel appearing on behalf of accused-appellants and accused-appellants, along with others, forming an unlawful assembly and armed with deadly weapon, like dao, lathi entered into compound of dwelling house of younger brother of the complainant Samir Uddin Mazumder and assaulted Abdul Kuddus Mazumdar, Samir Uddin Mazumdar, Ain Uddin Mazumdar, Tosub Uddin Mazumdar and Salim Uddin Laskar causing injuries to their persons also set fire in dwelling house of Samir Uddin Mazumdar aforesaid – Held, Evidence on record and findings recorded during course of discussions, this Court is of view that there is nothing to interfere with judgment of learned trail Court so far as conviction of accused-appellants are concerned as same is based on evidence on record and there is no illegality and impropriety in recording such finding by learned trial Court – Investigating Police Officer also seized certain articles from house which was burnt into ashes, thereby supporting the evidence of other witnesses in respect of house – Question was set in fire and thus burnt into ashes accused-appellants cannot escape liability of commission of offence in furtherance of their common object – Although individual name of accused-appellants did not come up in the evidence except in evidence of effect that accused Monojor set house in fire – Appeal is partly allowed.
1. This appeal, under Section 374(2) of the Cr.P.C., has been preferred by the accused-appellants, namely, 1. Md. Babul Hussain Laskar @ Babul Hussain, 2. Md. Jalal Uddin Laskar @ Jalal Uddin, 3. Ashir Ali and 4. Monojar Ali @ Monozir Ali, against the judgment and order, dated 19-08-2014, passed by learned Additional Sessions Judge (FTC), Cachar, Silchar, in Sessions Case No. 79 of 2008, convicting the accused-appellants, under Sections 148/323/447/436/149 of the IPC and sentencing each of the accused-appellants to undergo simple imprisonment for 1 month and to pay a fine of Rs.300/-, in default, to suffer simple imprisonment for a further period of 15 days, for the offences punishable under Sections 447/149 IPC. Simple imprisonment for 6 months and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for a further period of 15 days, for the offences punishable under Sections 323/149 IPC. Rigorous imprisonment for 5 years and to pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for a further period of 3 months, for the offences punishable under Sections 436/149 IPC.
2. I have heard Mr. SK Singha, learned counsel appearing on behalf of accused-appellants and Mr. BJ Dutta, learned Additional Public Prosecutor, Assam.
3. The prosecution case, as unfolded during the trial is that, on 02-05-2008, at about 8.00 p.m., the accused-appellants, along with others, forming an unlawful assembly and armed with deadly weapon, like dao, lathi etc. entered into the compound of the dwelling house of the younger brother of the complainant, namely, Samir Uddin Mazumder and assaulted Abdul Kuddus Mazumdar, Samir Uddin Mazumdar, Ain Uddin Mazumdar, Tosub Uddin Mazumdar and Salim Uddin Laskar causing injuries to their persons. They also set fire in the dwelling house of Samir Uddin Mazumdar aforesaid.
4. On the above facts, an FIR was lodged with the Lakhipur Police Station. On receipt of which, a case, being Lakhipur Police Station Case No. 123/2008, under Sections 147/148/149/448/323/324/436 of the IPC was registered. Police investigated into it, collected evidence, arrested the accused-appellants, and after completion of the investigation, finally, submitted charge-sheet against the accused-appellants, under Sections 147/148/323/324/447/436/149 of the IPC.
5. On receipt of the case, on being committed by the learned Chief Judicial Magistrate, learned trial Court of Additional Sessions Judge framed formal charge against the accused-appellants and others, under Sections 147/148/323/324/447/436/149 of the IPC, to which the accused-appellants and others pleaded innocence. Thus, the trial commenced.
6. The prosecution examined as many as 10 witnesses in this case, whereas the defence examined none. In his statement, recorded under Section 313 Cr.P.C., the accused persons are found to have denied the accusations levelled against them and they have taken the plea that there was land dispute between the parties following which the accused persons have been falsely implicated.
7. In the cross-examination of the prosecution witnesses also the defence appear to have taken the stand that it was because of land dispute, a false case has been instituted against them with the allegation of commission of offences under the provisions of law as aforesaid.
8. In view of the facts of the case and the evidence led by the prosecution, the following points arose for determination:
“(a) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the said assembly committed the offence of rioting and thereby committed an offence U/S 147 R/W Sec. 149 I.P.C?
(b) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the said assembly committed the offence of rioting with deadly weapon
