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IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
AJIT BORTHAKUR, J.
MD FAZAR ALI S/O LATE KURJAT ALI - Appellant
Vs.
THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM - Respondent
Crl.A./384/2018
Decided On : 23-04-2021
Criminal Procedure Code - Section 374 – Indian Penal Code - Section 304 – Injuries – First Information Report - Undergo rigorous imprisonment - Prosecution case in brief is that one a resident under Police Station lodged an F.I.R. with Officer In-charge of said Police Station alleging interalia that on that day while his elder brother along with sister-in-law was ploughing on land belonged taken on ‘bandhak’ for two years convicted accused appellant and other acquitted accused respondents being armed with dao, lathi etc. attacked them and caused grievous injuries on their persons – Thereafter said injured persons were shifted to PHC – However succumbed to his injuries –
Finding of the Court: Thus when eyewitnesses deposed to have seen accused persons equipped with deadly weapons one of them inflicting fatal blow on head of deceased and another causing injuries on person conjectures and surmises cannot have place therein and as such this court finds it appropriate to interfere in order of acquittal of accused persons and in conviction of appellant under Section 304, Part II of the IPC on ground of his exercise of right of defense of person and property - For above stated reasons impugned judgment and order is set aside and case is remanded back to learned trial court for compelling exceptional reasons discussed above with direction to examine as a Court Witness subject to cross-examination by defense and additional defense evidence etc. if any confining to his evidence only and deliver a fresh judgment in accordance with law - It is hereby made clear that no observation made in course of this judgment and order shall have a bearing in fresh judgment and order to be passed by learned trial court in due course - Both parties are directed to appear before court of learned Sessions Judge positively to receive further instructions –
Result: Appeal stands disposed off
JUDGMENT& ORDER :
As both the above appeals are arising out of the same impugned judgment and order, this court proposes to dispose of the same by this common judgment and order.
2. Heard Mr. K. Sarma, learned counsel appearing for the accused/ appellant. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the State/ respondent No. 1 and Md. M.H. Choudhury, learned counsel for the informant/ respondent No.2 in Crl. Appeal No. 384/2018.
3. Heard Md. M.H. Choudhury, learned counsel appearing for the informant/appellant. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the State/respondent No. 1 and Mr. K. Sarma, learned counsel for the accused/ respondents No.2 to 6 in Crl. Appeal No. 178/2020. It may be pointed out that the accused/ respondent No. 2 being convicted has preferred Crl. Appeal No. 384/2018.
4. The Crl. Appeal No. 384/2018 under Section 374(2) Cr.P.C. is preferred against the judgment and order, dated 30.11.2018, passed by learned Sessions Judge, Sonitpur at Tezpur convicting the accused/ appellant under Section 304, Part-II of the IPC and sentencing him to undergo rigorous imprisonment for 9(nine) years and to pay fine of Rs.5,000/-, in default to undergo rigorous imprisonment for 3(three) months in Sessions case No. 105/2012 arising out of G.R. case No. 615/2007.
5. The Crl. Appeal No. 178/2020 under Section 372 Cr.P.C. is preferred by the informant Md. Abul Basar against the judgment and order of acquittal of the other accused persons. Leave granted vide order, dated 20.08.2020, passed in I.A.(Crl.) No. 361/2019.
6. The prosecution case, in brief, is that one Abul Basar, son of Abdul Khaleque, a resident of Kachamari, under Jamuguri Police Station lodged an F.I.R. with the Officer In-charge of the said Police Station on 18.04.2007 alleging, interalia, that on that day at around 6 a.m. while his elder brother Mosha Ali along with sister-in-law Mainul Hoque was ploughing on the land belonged to Bhimlal Sharma and Tharpalal Sharma taken on ‘bandhak’ for two years, the convicted accused appellant and other 7 acquitted accused respondents being armed with dao, lathi etc. attacked them and caused grievous injuries on their persons. Thereafter, the said injured persons were shifted to Dhalaibil PHC. However, at around 7.30 a.m., Mosha Ali succumbed to his injuries.
7. Based on the above F.I.R., Jamuguri P.S. case No. 42/07 under Sections 147/148/149/325/326/302 of the IPC, dated 18.04.2017, was registered and on completion of investigation laid a charge-sheet under the aforesaid Sections of the IPC against the present convicted accused/ appellant and other 7 acquitted accused persons. After the case was committed for trial, learned Sessions Judge, Sonitpur at Tezpur made ever the case to the court of learned Addl. Sessions Judge, F.T.C., Tezpur for trial. Accordingly, after consideration of the evidence of the case diary and hearing of both sides, the charges as charge-sheeted were framed and read over to the accused persons to which they pleaded not guilty and claimed to be tried. In order to prove the charges, the prosecution examined sixteen witnesses. After completion of evidence of the prosecution side, the statements of the accused persons were recorded under Section 313 Cr.P.C. They reiterated their innocence and examined one witness in their defence. After hearing the learned counsel of both sides and consideration of evidence of both sides, the learned Sessions Judge, Sonitpur, convicted and sentenced the present accused/ appellant in Crl. Appeal No. 384/2018 under Section 304, Part-II of the IPC as stated above, while his co-accused persons, named in Crl. Appeal No. 178/2020 were acquitted of the charges.
8. Mr. K. Sarma, learned counsel appearing for the accused/ appellant, submitted that the appellant in Crl. Appeal No. 384/2018 is convicted and sentenced on erroneous appreciation of evidence inasmuch as based on the same set of evidence, however, his co-accused persons are acquitted of the
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