Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 744

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, MRIDUL KUMAR KALITA, JJ.
Md. Amir Hasan @ Amir Hasem S/o Late Umed Ali – Appellant
Versus
The State of Assam – Respondent
Crl. Appeal No. 38 of 2020
Decided On : 28-06-2023

Advocates:
Advocate Appeared:
For the Appellant : S.G. Baruah.
For the Respondents: S. Jahan, B.M. Choudhury.

Point of Law: Under Section 145 of Evidence Act when it is intended to contradict witness by his previous statement reduced into writing, attention of such witness must be called to those parts of it which are to be used for purpose of contradicting him, before writing can be used.

Headnote:
Indian Penal Code, 1860 - Sections 302, 149, 143, 326, 147, 148 – Criminal Procedure Code, 1973 – Section 313, 161, 164 - Evidence Act, 1872 - Section 145 - Dispute of land and property – Murder offence – Unlawful assembly - Appeal against conviction - Accused persons hacked father of first informant to death with sharp weapon over dispute of land and property – Evidence on record suggest that death of both deceased was caused by appellants while they were member of unlawful assembly with common object of killing deceased persons - Para 28.
Finding of the Court:
Evidence on record suggest that death of both deceased was caused by named appellants while they were member of unlawful assembly including Appellant Nos. 1,3,4,5 and Juvenile accused with common object of killing deceased persons - None of prosecution witnesses have implicated him, Court is unable to agree with finding of learned trial court that mere presence of appellant No.2 at place of occurrence would make him liable under section 149 of Indian penal code for alleged offence, even if no overt act has been attributed to him – Court is of considered opinion that as there is no incriminating evidence against appellant No.2, his conviction under section 149/302 of Indian Penal Code is not warranted and liable to be set aside – Conviction and sentence imposed is hereby upheld and not interfered with.
Result: Appeal disposed of.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Ms. S.G. Baruah, learned counsel for the appellants. Also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State respondent no. 1 as well as Mr. B.M. Choudhury, learned counsel for the respondent no. 2 (informant).

2. This criminal appeal has been preferred under section 374 of the Code of Criminal Procedure, 1973 by the appellants, namely, (i) Md. Amir Hasan @ Amir Hasem, (ii) Md. Idrish Ali, (iii) Md. Ruhul Amin (iv) Md. Nazimuddin and (v) Mustt. Rohima Khatun impugning the Judgment and Order dated 03.12.2019 passed by the Court of learned Additional Sessions Judge, (F.T.C.), Lakhimpur, North Lakhimpur in Sessions Case No. 05(NL)/2015, whereby, the present appellants were convicted under sections 302/149 of the Indian Penal Code and were sentenced to undergo imprisonment for life and also to pay a fine of Rs. 3,000/-, only each and in default of payment of fine to undergo rigorous imprisonment for another 6 (six) months each.

3. The facts relevant for adjudication of this appeal, in brief, are as follows:

(i) On 15.08.2010, one Md. Abdul Kuddush lodged an FIR before the In-Charge of Bangalmora Police Outpost, interalia, stating that at around 6:00 AM on that day, i.e. on 15.08.2010, the accused persons, named in the FIR, namely, Md. Nazimuddin, Md. Amir Hasan, Md. Ruhul Amin, Md. Nur Mohammad and Md. Idrish Ali hacked the father of the first informant namely, Amir Ali and his brother namely, Malekastor to death with sharp weapon over dispute of land and property. It is also stated that the mother of the first informant Mustt. Rohima Khatun and the younger brother of the first informant Md. Seikh Forid were also grievously injured by the accused persons named in the FIR and at the time of lodging of the FIR the mother of the first informant was in a critical condition.

(ii) On receipt of the said FIR, the In-Charge of Bangalmora Police Outpost made a G.D. Entry at the Bangalmora Police Outpost, namely, Bangalmora, O.P.G.D. Entry No. 226 dated 15.08.2010, at 8:30 AM, and forwarded the FIR to the Officer-in-Charge of Bihpuria Police Station for registration of a case and accordingly Bihpuria P.S. Case No. 270/2010 was registered under section 143/302/326 of the Indian Penal Code and the investigation was initiated. After completion of the investigation, the charge-sheet (charge-sheet no. 218/2013 dated 30.10.2013) against the present appellants under section 147/148/149/302/326 of the Indian Penal Code was submitted. One of the accused named in the FIR namely, Md. Nur Mahammad @ Nummat was found to be juvenile and his case was forwarded to the concerned Juvenile Justice Board.

(iii) The present appellants faced the trial remaining on bail. Considering the materials on record and after hearing both sides, learned Trial Court framed charges under section 148/149/302/326 of the Indian Penal Code against the present appellants. When the said charges were read over and explained to the present appellants they pleaded not guilty and claimed to be tried.

(iv) During trial, the prosecution side examined 9(nine) prosecution witnesses and exhibited 9(nine) documentary evidence. The present appellants were examined under section 313 of the Code of Criminal Procedure, 1973 during which all of them denied the incriminating evidence adduced by prosecution witnesses against them and pleaded their innocence. They declined to adduce any evidence in defence. After completion of trial, learned Trial Court, by the Judgment impugned in this Appeal, convicted and sentenced the present appellants in the manner as already described in the paragraph no. 2 herein before.

4. Before considering the rival submissions made by learned counsel for the both sides, let us go through the relevant evidence adduced by prosecution witnesses, during trial, which is available on record.

5. P.W. 1, Md. Mahar Ali, has deposed that on the day of incident, at about 6:00 AM, during the month of Ramjan, when he wa