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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MANASH RANJAN PATHAK, MIR ALFAZ ALI, JJ.
Md Abdul Sahid Laskar And Ors – appellant
Versus
The State Of Assam And Anr - Respondents
Crl.A.293 of 2015
Decided on : 20-04-2021
Indian Penal Code,1860 – Section 302/149, 148/149, 447/149, 321 and 323 – Criminal Procedure Code,1973 – Section 313 - Forming unlawful assembly - Armed with deadly weapons -Learned Additional Sessions Judge (FTC), by judgment passed in Sessions Case arising out of Police Station Case corresponding to GR case convicted appellants/accused persons under Sections 148/447/302/323 IPC read with Section 149 IPC for committing the crime, forming an unlawful assembly, armed with deadly weapons, prosecuted common object, criminally trespassed into homestead boundary of one so as to commit the offence and killed said one by assaulting him on his head, a vital part of the body and also voluntarily caused hurt on person of one - Heard learned Counsel, appearing for accused appellants submitted that by impugned judgment learned Trial Court arbitrarily and illegally convicted the accused appellants though defense brought sufficient contradictions to notice of the said Court with regard to the evidence adduced by prosecution - From the evidence of the prosecution witnesses, learned Counsel for the accused appellants tried to establish before Court that prosecution not only failed to prove guilt of accused appellants beyond all reasonable doubt but also failed to prove that at the time of the incident accused appellants formed an unlawful assembly, that they were armed with weapons and prosecuted with common object of that assembly submitted that by adducing its evidence prosecution failed to lead to the only and inescapable conclusion that the accused appellants used criminal force, indulged in violence in committing the offence of rioting and in causing grievous hurt, resulting in his death and that they severely injured said one son of said one also submitted that Trial Court did not consider the replies of accused persons to the queries made under Section 313 CrPC while delivering the impugned sentence - Whether it was human blood or it was of bird or animal.
Finding of the Court:
Court have already noticed about the existence of land dispute between parties as well as the presence of enmity between them and all these led to a mutual conflict between the parties - From the perusal of the evidence on record, the exhibits etc.as discussed above court found that the offence was outcome of quarrel and fight between both the parties, in which members of both the parties sustained injuries - Court did not find any reliable and acceptable evidence as to how it started and as to who was the aggressor - Moreover, from the injury report of victim and the post mortem report of the deceased, it cannot be said that the accused persons acted cruelly and/or in unusual manner or took undue advantage - As such court are of the view that the case in hand falls under Exception 4 to Section 300 of the IPC- Court have also seen from the evidence that since date of incident accused being grievously injured in the same fight between parties was in SMCH till his release and after his release from said hospital, he was arrested - Therefore, in court considered opinion, accused-appellants could not have been convicted under Sections 302/149 I.P.C. for causing death of said one as we did not find any such intention to cause death of the said deceased - As such, court set aside said conviction of the accused-appellants and modify their conviction under Section 304 Part-II I.P.C. - Accordingly, this criminal appeal is partly allowed by altering conviction to the extent.
Result: Appeal Partly allowed
JUDGMENT :
M.R. Pathak, J
Learned Additional Sessions Judge (FTC), Cachar, Silchar by judgment dated 31.08.2015 passed in Sessions Case No. 21/2010, arising out of Katigorah Police Station Case No. 491/2008, corresponding to GR case No. 3462/2008, convicted the appellants/accused persons under Sections 148/447/302/323 IPC read with Section 149 IPC for committing the crime, forming an unlawful assembly, armed with deadly weapons, prosecuted the common object, criminally trespassed into the homestead boundary of Abdul Monaf so as to commit the offence and killed said Abdul Monaf by assaulting him on his head, a vital part of the body and also voluntarily caused hurt on the person of one Rustom Ali, son of said Abdul Monaf.
2. Said Additional Sessions Judge (FTC), Cachar, Silchar by order dated 04.09.2015 passed in Sessions Case No. 21/2010, sentenced the accused appellant No. 1, considering his old age (i) to undergo simple imprisonment for life with fine of Rs. 5,000/-under Sections 302/149 IPC, in default of payment of fine, simple imprisonment for one year; (ii) to undergo simple imprisonment for six months under Sections 148/149 IPC; (iii) to pay fine of Rs. 500/-under Sections 447/149 IPC and (iv) to pay fine of Rs. 500/-under Sections 323/149 IPC.
3. By the said order dated 04.09.2015, passed in Sessions Case No. 21/2010 learned Additional Sessions Judge (FTC), Cachar, Silchar sentenced the accused appellant Nos. 2 to 5 -(i) to undergo rigorous imprisonment for life with fine of Rs. 5,000/-each under Section 302/149 IPC, in default of payment of fine, rigorous imprisonment for one year each; (ii) to undergo simple imprisonment for six months each under Sections 148/149 IPC; (iii) to pay a fine of Rs. 500/-each under Section 447/149 IPC, in default of payment of fine, simple imprisonment for one month each and (iv) to pay a fine of Rs. 500/-each under Section 323/149 IPC, in default of payment of fine, simple imprisonment for one month each.
4. The Additional Sessions Judge (FTC), Cachar, Silchar regarding the order of sentence dated 04.09.2015, categorically observed that on realization of fine from the accused persons, the same shall be paid to the legal heir of the deceased Abdul Monaf under Section 357 CrPC.
5. Being aggrieved with the said judgment of conviction dated 31.08.2015 and the order of sentences dated 04.09.2015 passed against them by the Additional Sessions Judge (FTC), Cachar, Silchar in Sessions Case No. 21/2010, the accused persons have preferred this appeal.
6. Heard Mr. Bijan Kumar Mahajan, learned Counsel, appearing for the accused appellants submitted that by the impugned judgment the learned Trial Court arbitrarily and illegally convicted the accused appellants though the defence brought sufficient contradictions to the notice of the said Court with regard to the evidence adduced by the prosecution. From the evidence of the prosecution witnesses, Mr. Mahajan, learned Counsel for the accused appellants tried to establish before the Court that the prosecution not only failed to prove the guilt of the accused appellants beyond all reasonable doubt but also failed to prove that at the time of the incident the accused appellants formed an unlawful assembly, that they were armed with weapons and prosecuted with the common object of that assembly. Mr. Mahajan submitted that by adducing its evidence the prosecution failed to lead to the only and inescapable conclusion that the accused appellants used criminal force, indulged in violence in committing the offence of rioting and in causing grievous hurt on Abdul Monaf, resulting in his death and that they severely injured Rustom Ali, son of said Abdul Monaf. Mr. Mahajan also submitted that the Trial Court did not consider the replies of the accused persons to the queries made under Section 313 CrPC while delivering the impugned sentence dated 31.08.2015 and order of conviction dated 04.09.2015, although it is the solemn duty of the Court to adequately consider the sa
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