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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
N. KOTISWAR SINGH, MALASRI NANDI, JJ.
Altaf Hussain Barbhuyan @ Alta Hussain And S/O Abdul Wahid Barbhuiya 2 Ors – Appellant
Versus
The State of Assam and Anr. – Respondents
Crl. A. 281, 260 of 2016
Decided on : 13-06-2022
Indian Penal Code,1860 - Sections 302/149, 141, 147/148/302 – Criminal Procedure Code,1973 - Section 313 - Every member of unlawful assembly guilty of offence committed - Examination of accused - Offence of murder - common object of the assembly- prosecution has not proved common object amongst the accused/appellants and that all of them acted in furtherance of the common object to invoke the first part of the section 149 IPC.- Even if it is presumed that there was an unlawful assembly, has not been proved. The expression “in prosecution of the common object” occurring in this section postulates that the act must be one which have been done with a view to accomplish the common object attributed to the members of the unlawful assembly - Expression is to be strictly construed as equivalent in order to attain common object. It must be immediately connected with common object by virtue of nature of object. In the instant case, even the evidence is not laid on this aspect. (Para 48,50)
Finding of the Court:
Accused/appellants falls under second part of section 149 IPC - Members of unlawful assembly whether accused/appellants knew that the offence of murder is likely to be committed - It is a matter of evidence that on receipt of information regarding assault towards son of deceased went to his paddy field where his sons were working - On his arrival on the spot along with his wife and daughter they did not find any scuffle between parties. On being asked to his sons by the deceased it came to their knowledge that it was false information - Time of returning home incident occurred - Fact was confirmed by P.W-10, i.e. Investigating Officer that the witness i.e. P.W-1 did not state before him about aforesaid fact – Court have also gone through impugned Judgment of Trial Court but there is no definite finding of the Trial Court that the common object of the assembly was to commit the murder of Mayub Raja or that accused/appellants had knowledge that offence of murder was likely to be committed and hence the conviction of the accused/appellants u/s 302 IPC with aid of section 149 IPC cannot be sustained.
Result: Appeal is allowed
JUDGMENT :
Malasri Nandi, J.
1. Heard Mr. A. Choudhury, assisted by Mr. D. Borah, learned Counsel appearing for the appellants in Crl. A. No. 281/2016 and Mr. A. R. Bhuyan, assisted by Mr. MAI Hussain, learned counsel appearing for the appellants in Crl. A. No. 260/2016. We have also heard Mr. P. Borthakur, learned Addl. P.P. Assam appearing for the State/respondents.
2. This judgment shall cover the disposal of the Criminal Appeal no. 281/2016 preferred by accused/appellants 1. Altaf Hussain Barbhuyan @ Alta Hussain, 2. Abdul Kadir and 3. Abdul Wahid Barbhuyan and Criminal Appeal No. 260/2016 filed by other accused/appellants namely 1. Borai Mia @ Giasuddin, 2. Badal Mia, 3. Siraj Uddin and 4. Taimush Uddin Barbhuiya, arising out of the same judgment dated 12.08.2016 passed by the learned Sessions Judge, Cachar, Silchar in connection with Sessions Case No. 185/2009 convicting the accused/appellants under Section 302/149 IPC and sentenced them to undergo imprisonment for life along with a fine of Rs. 5,000/-each with default stipulation.
3. The brief facts of the case is that the informant Ainul Haque Mazumdar lodged an ejahar before the Officer-In-Charge, Dholai Police Station stating inter-alia that in the early morning of 01.08.1994 his elder brother Nurul Islam along with their agricultural labourers went to plough their paddy field at Jamalchar. After some time he also went to their paddy field with a spade. Around 6.00 A.M. accused Atabur Rahman came to their house and falsely reported to his father that the accused persons namely 1. Nizam Uddin, 2. Md. Jalal Uddin, 3. Ramiz Uddin, 4.Badal Mian, 5.Borai Mian @ Giasuddin, 6. Md. Siraj Mian, 7.Md. Taimuz Uddin, 8. Md. Atabur Rahman, 9. Md. Kadir, 10. Md. Rastum, 11. Md. Nasir Uddin, 12.Md. Alta Hussain, 13. Md. Abdul Wahid, 14. Md. Abdul Latif, 15. Md. Giyas Uddin and 16. Md. Selim Uddin were assaulting them in the field. On receipt of the information, his parents rushed to the field. But no such incident noticed as reported. Thereafter, they were ready to return back home. When they reached in front of the house of Mujammil Ali, the aforesaid accused persons being armed with deadly weapons like dao, spear, lathi etc., suddenly started assaulting his father. He fell on the ground. Due to the alleged assault his father died on the spot. When he and his mother raised alarm, the accused persons fled away from the scene.
4. On receipt of the ejahar, a case was registered vide Dholai P.S. Case No. 150/1994, under Section 147/148/302/149 IPC. During investigation, the Investigating Officer recorded the statement of the witnesses wherein, P.W.-1, P.W-2, P.W-3, P.W-5, P.W-6, P.W-8 and P.W-11 were shown as eye-witnesses. It appears from the statement of the witnesses that the incident was happened due to previous enmity regarding the landed property. During investigation, the Investigating Officer also seized one spear from the place of occurrence in presence of the witnesses. Site map was also prepared. The inquest on the dead body of the deceased was done by the Investigating Officer himself. Thereafter, the dead body of the deceased was sent for post-mortem examination. During investigation, the Investigating Officer also collected the post-mortem report of the deceased. After completion of the investigation charge-sheet had been submitted against the aforesaid accused persons under Section 147/148/302/149 IPC out of which accused Ramijuddin, Badal Mia, Siraj Mia, Md. Taimujuddin, Md. Kadir, Abdul Wahid, Abdul Latib, Md. Selimuddin were shown as absconders. The charge-sheet has been submitted before the learned Judicial Magistrate 1st Class, Cachar, Silchar, who committed the case to the Court of Sessions. The learned trial Court framed and explained the charges. The appellants abjured their guilts and claimed that they have been falsely implicated in this case due to enmity.
5. To substantiate the case of the prosecution, 11(eleven) witnesses were examined and marked eight exhibits a
Point of Law : Unlawful assembly – Common object - No doubt section 149 IPC is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the common object various circu....
The prosecution must establish a common object for unlawful assembly under Section 149 IPC; absence of motive and specific allegations can lead to acquittal.
The court established that in cases of unlawful assembly, all members can be held vicariously liable for the actions taken in furtherance of a common object, and that the prosecution's failure to exp....
The court affirmed the conviction for murder based on the established common object of the unlawful assembly, supported by credible witness testimonies and medical evidence.
The main legal point established in the judgment is the application of Section 149 IPC to determine the common object of the unlawful assembly and the vicarious liability of the accused, as well as t....
The court held that the evidence of the eyewitnesses was reliable and sufficient to support the convictions, and that the appellants had failed to provide a reasonable explanation for their actions. ....
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