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2022 Supreme(Gau) 177
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. KOTISWAR SINGH, MALASRI NANDI, JJ.
Md. Abdul Goni, S/O Jamiruddin - Appellant
Versus
Md. Sibir Ahmed S/O Mukaddas Ali - Respondent
Crl.A. 328 of 2018
Decided On : 08-04-2022
For the Appellant :Dr. B.U. Ahmed, Md. A.J. Atia, Mr. N. Haque, Mr. S.R. Barbhuiya, Mr. M. Hussain Advocates.
For the Respondent:Mr. H.R.A. Choudhury (Sr. Adv.), Mr. H. Ali, Mr. A. Ahmed, Mr. P. Borthakur, Addl. PP, Assam. Advocates.
Point of Law : If there is a miscarriage of justice, or is perverse, the acquittal by the Trial Court can be overturned by the Appellate Court.
Headnote:
Penal Code, 1860 - Sections 148/149/447/323/302 – Offence of Murder – Unlawful assembly – Appeal against acquittal.
Finding of the Court:
Trial Court acquitted the accused on the ground that there is some element of vagueness as to who had actually caused the injury to the victims and in what manner. As discussed above, there are credible materials on record which would clearly implicate the respondent No.1 for the death of the deceased and as such, we are of the view that the finding arrived at by the Trial Court is perverse which is against the weight of evidence and the finding of the Trial Court defies logic in the light of clear and trustworthy evidence of the eye-witnesses.
Result: Allowed
JUDGEMENT :
N. Kotiswar Singh, J.
Heard Mr. N. Haque, counsel for the appellant. Also heard Mr. A. Ahmed, learned counsel appearing for the respondent Nos.1-7 and Mr. P. Borthakur, learned Additional Public Prosecutor, Assam, appearing for the State/respondent No.8.
2. The present appeal has been filed by the complainant (appellant herein) being aggrieved by the acquittal of the accused persons (respondent Nos.1 to 7) vide impugned judgment dated 19.02.2018 passed by the learned Additional District and Sessions Judge, Fast Tract Court, Hojai, Sankardev Nagar in Sessions Case No. 275/2013 under Sections 148/149/447/323/302 of the IPC by giving benefit of doubt.
3. The aforesaid criminal proceeding was initiated on a complaint lodged by the present appellant, Md. Abdul Goni before the Officer-in-Charge of Murajhar Police Station on 27.03.2012 alleging that at around 7:00 A.M. on 24.03.2012, the accused persons, namely, (1) Sibir Ahmed, S/o-Mukaddas Ali; (2) Misbah Uddin, S/o Akaddas Ali; (3) Taz Uddin, S/o Mukaddas Ali, (4) Nasim Uddin, S/o Akaddas Ali; (5) Akaddas Ali, S/o Late Madarish Ali; (6) Muktar Uddin, S/o Mukaddas Ali and (7) Abadur Rahman, S/o Akaddas Ali, (respondent Nos.1-7) started erecting a house on the land owned and possessed by him. It was alleged that as his father Md. Jamir Uddin prevented them (respondent Nos.1-7) from constructing the house, the accused persons hacked his father with sharp dao(s) and when the appellant went there to save his father Jamir Uddin, the accused persons also struck him with iron rod(s). The complainant also alleged that the accused persons had assaulted his wife Muslima Begum and mother Golapjan Begum, causing injuries to them.
4. On the basis of the said complaint an F.I.R. under Murajhar P.S. Case No. 68/2012 under Sections 143/447/325/326 IPC was registered. After the death of the deceased Jamir Uddin at hospital, the offence under Section 302 IPC was added to the F.I.R.
5. On completion of the investigation, charges were framed against the accused persons, namely, (1) Sibir Ahmed, (2) Taz Uddin, (3) Muktar Uddin (4) Abadur Rahman (5) Misbah Uddin, (6) Md. Nachim Uddin (7) Akaddash Ali, and (respondent Nos.1-7) holding that the accused persons (respondent Nos.1-7) on 24.03.2012 at 7:00 A.M. formed an unlawful assembly armed with lethal weapons to commit an offence and thereby committed an offence punishable under Section 148 of the IPC.
Secondly, that the accused, on or about 24.03.2012 at 7 A.M. had a common object to cause hurt to Jamir Uddin, Muslima and Golapjan Bibi and thereby committed an offence punishable under Sections 149 and 34 of IPC.
Thirdly, the accused, on or about 24.03.2012 at 7 A.M. caused trespass into the property of Md. Abdul Goni and thereby committed an offence punishable under Sections 447 and 34 of IPC.
Fourthly, they, on or about 24.03.2012 at 7 A.M. murdered Md. Jamir Uddin and thereby committed an offence punishable under Sections 302 and 34 of IPC.
Lastly, they, on or about 24.03.2012 at 7 A.M. caused voluntarily hurt to Muslima Begum and Golapjan Bibi and thereby committed an offence punishable under Section 323 and 34 of IPC.
6. The prosecution examined as many as 9(nine) witnesses to substantiate the charges and accused in defence adduced 3(three) witnesses.
7. The accused denied their involvement in the aforesaid case. In the statements recorded under Section 313 CrPC they alleged that the complainant had made false allegations against them.
8. The accused Misbah Uddin (respondent No.5) stated in his statement recorded under Section 313 Cr.P.C. that his maternal uncle Sirazuddin had gifted the disputed land to his mother and deceased Jamir Uddin was his maternal uncle. He stated that on the day of the incident, as he went to the land to construct a shop thereon, the complainant’s side resisted him whereupon, an altercation broke out there. He stated that however, he could not say how the deceased Jamir Uddin died later on.
9. The other accused also took sim
