Gauhati High Court
Page No.# 1/14 vs The State Of Assam And Anr on 20 April, 2021
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/14
GAHC010174362015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./111/2015
MD USTAR ALI BHUYAN @ OSTAR ALI BHUYAN and ANR
2: MD. AFTAR ALI BHUYAN
BOTH ARE SONS OF LATE HAJI AYUB ALI BHUYAN
VILL. NAM DABAKA PATHAR
P.O. and P.S. DABAKA
DIST. NAGAON
ASSAM
VERSUS
THE STATE OF ASSAM and ANR
2:HAZI MD. RAMJAN ALI KHAN
S/O LATE ABDUR RASHID KHAN
VILL. NAM DAKABA PATHAR
P.O. and P.S. DABAKA
DIST. NAGAON
ASSAM
PIN 78244
Advocate for the Petitioner : MR.H R A CHOUDHURY
Advocate for the Respondent : MR.A U AHMEDR-2
Page No.# 2/14
BEFORE
HON' BLE MR. JUSTICE MANASH RANJAN PATHAK
HON' BLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT (CAV)
Date : 20-04-2021 (M.R. Pathak J) Heard Mr. HRA Choudhury, learned Senior counsel assisted by Mr. A. Ahmed, learned counsel for the appellant and Ms. Shamima Jahan, learned Additional Public Prosecutor for the State respondent. None appeared on behalf of respondent No. 2/informant.
2. Learned Additional Sessions Judge, No.1, Nagaon by the impugned judgment dated 02.04.2015, passed in Sessions Case No. 55(N)/1996 convicted the accused persons Ustar Ali Bhuyan @ Ostar Ali Bhuyan and After Ali Bhuyan under Sections 302/34 IPC finding them guilty for causing death of one Abdul Sahid in furtherance of common intention, whereby those two accused persons were sentenced to undergo Life Imprisonment with fine of Rs. 5,000/- each, in default to undergo Rigorous Imprisonment for further period of 1 (one) year.
3. Being aggrieved with the said judgment and order of conviction and sentence dated 02.04.2015, the two accused persons named above as appellants have preferred this appeal.
4. During pendency of this appeal, while the appellants were undergoing the sentence in terms of the impugned judgment dated 02.04.2015, the appellant Aftar Ali Bhuyan died on 19.05.2015. As such, on his death, this appeal stand abated with regard to the accused Aftar Ali Bhuyan. Now the appellant Ustar Ali Bhuyan @ Ostar Ali Bhuyan is before the Court.
5. The prosecution's case as narrated in the ejahar (Exhibit-1) is that one Hazi Ramjan Ali Khan (PW.5) at about 08:30 pm on 23.02.1994 submitted a written complaint before the officer-in-Charge of the Doboka Police Station stating that on 23.02.1994 around 03:00 PM while his nephew (late) Abdul Sahid, son of late Abdul Latif was proceeding towards Daboka Bazar, he was obstructed on the road by the accused persons named in the said ejahar and they attempted to assault him. However, his nephew Abdul Sahid ran away and took shelter Page No.# 3/14 in a house nearby to save his life. But the accused persons dragged him out from that house. At first, Hazi Ayub Ali Bhuya and then Md. Ustar Ali, son of said Hazi Ayub Ali Bhuya fired Abdul Sahid with pistol and assaulted him with dao striking him in his whole body thereby injuring him grievously, due to which he said nephew died on the spot. The accused persons also severely injured his companion Md. Abdul Mannan (PW.1) by assaulting him with dao and spear and said Abdul Mannan having undergoing treatment at Nagaon Civil Hospital. In the said ejahar, the informant Hazi Ramjan Ali Khan also stated that the accused persons were looking for opportunities to finish off the members of his family and when his nephew Abdul Sahid was brought from the place of occurrence to the Daboka Hospital, its doctors declared him as dead. By the said ejahar the informant requested the concerned authority to take necessary action. In the said ejahar the informant named all the victims included that of the diseased Abdul Sahid, Md. Abdul Mannan (PW.1), Md. Abdul Rezzak (PW.2), Md. Abdul Suban (PW.3) and Md. Abdul Rab (PW.4) as well as the names of 21 numbers of accused persons stating that there were many people with those accused persons whose names are not known to him but he would recognise them when he will see them. Informant Hazi Ramjan Ali Khan in his said ejahar specifically noted that on 01.02.1994 he filed a case before the Court of learned Sub-Divisional Judicial Magistrate, Hojai under Section 107 against the accused persons seeking protection of their life and property of his family from those accused persons who were threatening and harassing them.
6. On receipt of said ejahar, the same was registered as Daboka Police Station Case No. 28/1994 under Sections 147/148/149/341/326/307/325/302 IPC, corresponding to G.R.No. 130/1994 against the accused persons of the case.
7. From the records of the case it is seen that on 23.02.1994 around 04:00 PM one Md. Rais Mia Talukdar (PW.5), son of Abul Mia Talukdar of Nam Daboka Village personally appeared before the authorities of Daboka Police Station and verbally informed that on the road of Nam Daboka Pathar a fight took place between Hazi Ayub Ali Bhuyan and Kari Ramjan Ali. The said information was registered as Daboka Police Station GD Entry No. 462 dated 23.02.1994 and after registering the said GD Entry, the Officer-in-charge of the said police along with the police party proceeded to the place of occurrence.
Page No.# 4/14
8. On reaching near the place of occurrence said police party led by the Officer-in-charge of Daboka Police Station found that one of the injured victim Abdul Sahid, who was in unconscious state, was brought in a hand cart towards Daboka and also came to know that another severely injured victim Abdul Mannan (PW.1) was lying on the ground the place of occurrence. From the local people gathered at the place of occurrence the police personnel came to know about the involvement of the accused persons of the case. Though the said Police Party visited the residence of the accused persons on the night of the incident itself but none could be found as they fled from their locality after the incident.
9. The victim Abdul Sahid was already found dead and the other victim Abdul Mannan was sent to Nagaon Civil Hospital for treatment. Inquest of the deceased Abdul Sahid was done on the night of in the premises of Daboka Police Station on the night of 23.02.1994 in presence of witnesses and thereafter his body was sent to Nagaon Civil Hospital for its post mortem examination on that night itself. On the next day morning police again visited the residence of the accused persons in search of them but none could be found as they evaded arrest. However, on 24.02.1994 the complainant from his house gave (i) two arrows with iron head and (ii) one empty cartridge stating that while attacking them, those were used by the accused persons. Those arrows and the empty cartridge were seized by police in presence of witnesses as M.R. No. 13/1994 (Exhibit.2).
10. During investigation of the case the Investigating Officer arrested large numbers of accused persons but few other accused persons could evade arrest and remained absconded. After collecting the Post Mortem Report of the deceased Abdul Sahid dated 24.02.1994 from Nagaon Civil Hospital (Exhibit-3) and on completion of the investigation of the case, the Investigating Officer, finding prima facie materials against the accused persons, submitted the Charge Sheet in said Daboka PS Case No. 28/1994 on 13.02.1995 vide No. 31/1995 under Sections 147/148/149/341/323/324/325/307/302 IPC, initially against twenty one numbers of accused persons, including the present accused appellant. Later another six persons were charge sheeted in the case and in that way altogether twenty seven persons were charge sheeted in the case.
11. As the charge sheet in said Daboka PS Case No. 28/1994 contains charges which are Page No.# 5/14 exclusively triable by the Court of Sessions only, the learned Sub Divisional Judicial Magistrate, Hojai by order dated 02.04.1996 committed the said G.R. Case No. 130/1994 (arising out of Dabaka PS Case No. 28/1994) to the Court of learned Sessions Judge, Nagaon, where it was re-registered and numbered as Session Case No. 55(N)/1996. However, before committing the matter to the Trial Court, one of the accused out of those 27 charge sheeted accused, namely, Kala Mia expired and another absconded, who was later arrested. The learned Sessions Judge, Nagaon by order dated 20.06.1996 transferred the said Sessions Case No. No. 55(N)/1996 to the Court of learned Additional Sessions Judge, Nagaon for its disposal.
12. Finding prima facie materials, the learned Additional Sessions Judge Nagaon by order dated 20.06.1996 passed in said Session Case No. 55(N)/1996 framed charges under Sections 302/323/324 IPC against all the accused persons named in the Charge Sheet of said Daboka PS Case including the present appellant for intentionally causing death of Abdul Sahid, voluntarily causing hurt to Abdul Mannan and Abdul Sabar and also for causing voluntarily hurt to Abdul Razzak and Abdul Rouf. Subsequently on 29.01.2000 the charges under Sections 302/323/324 IPC were framed against accused Nijamuudin, who was not charged earlier. The charges were read over and explained to them, to which the accused persons pleaded not guilty and claimed to be tried. Accordingly, the Trial of the case began.
13. To bring home the charges against the accused persons of the case, including the appellant herein, the prosecution examined fifteen witnesses before the Trial Court and exhibited three documents, noted above and the defence examined two witnesses. The defence also cross examined the prosecution witnesses and similarly, the prosecution cross examined both the defence witnesses. After conclusion of recording of evidence of the prosecution witnesses, the Trial Judge recorded the statements of the accused persons under Section 313 CrPC. Further, on 08.12.2009 additional charges under Sections 147/148/ 149/341/307 IPC were framed against the accused persons, which were read over to them. The accused persons even on this occasion pleaded not guilty and they claimed to be tried. Since evidence of prosecution witnesses were already recorded before framing additional charges on 08.12.2009, the defence submitted a list of witnesses whom they desired to cross Page No.# 6/14 examined, which were accordingly done. The Trial Judge again recorded the statements of the accused persons under Section 313 CrPC on completion of recording of evidence after framing of additional charges noted above.
14. During the trial of the case, accused persons, namely, Hazi Ayub Ali Bhuyan, Anfar Ali Bhuyan, Samat Ali Bhuyan and Monfar Ali expired on and therefore the case against those accused persons were abated.
15. Mr. Choudhury, learned senior counsel for the accused appellant submitted that by the impugned judgment the learned Trial Judge acquitted all the accused persons except the present appellants and that the appellant No.2 Aftar Ali Bhuyan, had died during pendency of this appeal. Mr. Choudhury urged that by the same evidence when all the accused persons of the case charged with the same offence of the Penal Code have been acquitted by the Trial Court, the appellant is also entitled to be acquitted.
16. Mr. Choudhury also brought to the notice of the Court that acquisition against the present appellant Ustar Ali Bhuyan @ Ostar Ali Bhuyan is that he by pistol shot at the deceased Abdus Sahid, whereas the post mortem examination report of the said deceased (Exhibit-3) is totally silent with regard to the gunshot injury found on the person of the said deceased. Mr. Choudhury also stated that evidence of the concerned Doctor adduced by the prosecution does not state anything regarding gunshot injury sustained by the deceased. It is further argued by Mr. Choudhury that all prosecution witnesses are related witnesses to the deceased who falsely implicated the appellant and that there was enmity between the side of the informant and the father of the appellant pertaining to land dispute between them, and further, there was no corroborative evidence that the deceased died due to injury inflicted by the appellant. Mr. Choudhury further submits that the prosecution has totally failed to bring home any such evidence IPC regarding the involvement of the appellant in the incident including the common intention under Section 34. For all those reasons Mr. Choudhury submits that the appellant needs to be acquitted.
17. In support of his argument, Mr. Choudhury relied on the following judgment of the Hon'ble Apex Court:
Page No.# 7/14 With regard to inconsistency about the use of weapons, inimical witness - (i) Ganesh Datt Vs. State of Uttarakhand reported in (2014) 12 SCC 389, (ii) Kapildeo Mandal and Others Vs. State of Bihar reported in (2008) 16 SCC 99; regarding ocular evidence inconsistent with medical evidence - (iii) Ram Narayan Singh Vs. State of Punjab, reported in (1975) 4 SCC 497, (iv) State of Haryana Vs. Ram Singh, reported in (2002) 2 SCC 426, (v) Mani Ram and Others Vs. State of UP, reported in 1994 Suppl (2) SCC 89; regarding common intention - (vi) Raghubir Chand and Others Vs. State of Punjab, reported in (2013) 12 SCC 294, (vii) Suresh Sakharam Nangare Vs. State of Maharashtra, reported in (2012) 9 SCC 249;
regarding acquitted co-accused - (viii) Anil S/o. Shamtao Sute & Another Vs. State of Maharashtra, reported in (2013) 12 SCC 441; regarding tendency to implicate innocent persons and kinds of witnesses - (ix) Ranit Singh Vs. State of Punjab and Others, reported in (2013) 16 SCC 752 and (x) Kunju @ Balachandran Vs. State of Tamil Nadu, reported in (2008) 2 SCC 151. Regarding ocular evidence not supported by medical evidence, Mr. Choudhury also relied upon - (xi) Sujit Bardhan Vs. State of Tripura, reported in 2008 (1) GLT
192.
18. On the other hand Ms. Jahan, learned Additional Public Prosecutor, Assam submits that relying on the evidence adduced by the prosecution, the learned Trial Judge by the impugned judgment dated 02.04.2015 rightly convicted and sentenced the appellant as the prosecution could led sufficient evidence with regard to the involvement of the appellant in the alleged crime of intentionally causing murder of the deceased with common intention. She also submitted that the evidence of the witnesses led by the prosecution clearly reflect that there was a common intention for committing the crime by the appellant along with the co-accused convicted in the case who in the meanwhile expired.
19. In support of her argument, Ms. Jahan, learned Addl. PP relied on the following judgments of the Hon'ble Apex Court:
With regard to variance between medical evidence and ocular evidence - (i) Ramanand Yadav Vs. Prabhu Nath Jha and Others, reported in (2003) 12 SCC 606; regarding common intention (ii) Goudappa and others Vs. State of Karnataka, reported in (2013) 3 SCC 675 and regarding evidence of hostile witness - (iii) Koli Lakhmanbhai Chanabhai Vs. State of Page No.# 8/14 Gujrat, reported in (1999) 8 SCC 624.
20. We have considered the judgments cited by both the parties.
21. We have also carefully gone through the records of the case, the Exhibits, evidence of each of the prosecution witnesses, there cross-examinations by the defence and also the evidence adduced by the defence and also there cross-examination by the prosecution. We have noticed that the victim Abdul Mannan was examined twice by the prosecution, once as Prosecution Witness No.1 and then Prosecution Witness No.3. Again, prosecution examined two different witnesses, namely, Md. Rais Mia Talukdar and Dr. Maheswar Talukdar as Prosecution Witness No.8.
22. From the perusal of the Exhibit-3, Post Mortem Report of the deceased, we found that he sustained following injuries on his person -
i) Sharp cut injury on the left parietal scalp bone deep 3" x ½" on bandage.
ii) Hematoma under the cut in the skull.
iii) Punctured wound on the right Pectoralis area in the verge of axilla passing through the muscle and out in the axilla.
iv) Big cut injury on the left thigh above knee joint 3" x ½".
v) Big cut injury on the left ankle joint 2½" x 1".
vi) Big cut injury Under right ankle joint 3" x ½".
vii) Scalp - injuries described.
Skull - fracture of the left parietal skull bone.
Vertebrae - healthy.
viii) Membrane - damaged at the left parietal scalp blood clot underneath the membrane.
ix) Brain - damaged at the left parietal scalp.
Spinal cord - healthy.
x) Thorax - right ventricle full of blood and left ventricle empty. Vessels - cut at the site of the injury.
Rest of the Thorax region - healthy.
xi) Abdomen - All organs are healthy.
In the said Post Mortem Report regarding the injuries found on the person of the deceased, Doctor opined that all the injuries were ante mortem in nature and the cause of death was due to shock and hemorrhage as a result of injuries sustained.
Page No.# 9/14
23. PW.15, Dr. Anandaram Baruah, who was working as Joined Director of Health Services at Nagaon Civil Hospital at the relevant time proved said, Post Mortem Report of the deceased, Exhibit-3 and also his signature on it as well as that of the concerned autopsy doctor Dr. G.N.Kalita. Said PW.14 in his cross-examination by defence stated that the injuries sustained by the disease were not sufficient to cause a death of a person in the ordinary course. However, in his evidence in chief said Doctor PW.14 stated that the death of the deceased was due to shock and hemorrhage as a result of injuries sustained. We have noticed that the injuries like - bone deep sharp cut injury on parietal scalp, punctured wound on the pectoralis area in the verge of axilla that passed through the muscle and out in the axilla, big cut injury on the thigh above knee joint, big cut injury on the ankle joint, big cut injury under ankle joint, fractured skull on the parietal skull bone, damaged membrane at the parietal scalp, damaged brain etc. sustained by the deceased cannot be self inflicted, when it is in evidence that all those injuries on the person of the deceased were ante mortem in nature. Regarding death of the deceased, the acquisition is against the appellant and it is not the case of the defence that the deceased met with an accident. As such, it is clear that the death of the deceased was homicidal in nature and the defence failed to thwart that evidence led by the prosecution.
24. PW.8 Rais Mia Sarkar was the first to report about the incident before the Daboka Police Station immediately after the incident on the same day afternoon. In his evidence he stated that while he was proceeding towards the market to visit a doctor he heard hue and cry behind him at a short distance and when he turned around he found some people running here and there and on his way to hospital he informed the concerned police officer requesting the said authority to visit the place of occurrence. When he returned from the market in the evening said witness Rais Mia Sarkar saw the dead body of the deceased in the police station and he identified it as Abdul Sahid who was known to him. During his cross-examination by defence, said witness stated that there were 25/30 people who were running in here and there at that point of time. The concern investigating officer PW.14 Bhabendra Nath Kalita in his evidence in chief clearly stated that it is said Rais Mia Sarkar who reported the incident in the police station on the date of the incident about the occurrence of the marpit (fight) at Nam Daboka Pathar pursuant to which Daboka PS GD Entry No. 42 dated 23.02.1994 was Page No.# 10/14 made. During his cross-examination by the defence, said PW.14 clarified that witness Rais Mia Sarkar appeared in the police station and verbally informed that there was a marpit in the Daboka Pathar Road between Ayub Ali and Ramzan Ali, and that said information was entered in the Daboka PS GD Entry. He also stated that is what information there was marpit between both the parties. This evidence of PWs. Rais Mia Sarkar and Bhabendra Nath Kalita remained intact.
25. PW.2, Musstt. Kulsma Begum, before declared as a hostile witness see in her evidence dating that she lived in a plot of land of the informant and that the incident took place in the month of Ramadan and around 03:00 pm one person came running and entered their house, while her husband was not at home, where she was alone with her small boy cooking food. There after lot of people arrived in her house and she fled in a run. She also produced before the Magistrate at Sankardev Nagar and she gave her statement before the Magistrate and she can sign. She has also stated that she did not witness as to who had killed the deceased. The investigating officer of the case PW.14 in his evidence in chief stated that said Musstt. Kulsma Begum PW.2 stated before him that one person entered into her house, on being chased by Aftar, Ustar, Monir, Ayub Ali, Rajab Ali with lathi and dao in their hands. Ustar and Monir then dragged Abdul Sahid from the house to the outside and there after Ustar, Aftar, amd Monir caused dao and dagger cut injuries on the person of said Abdul Sahid. Evidence that deceased just prior to the incident came running and entered the house of PW.2 Musstt. Kulsma Begum and then lot of people arrived in her house could not be unsettled by the defence.
26. PW.1/PW.3 Abdul Mannan, prior to he being declared as a hostile witness, in his evidence stated that on the date of the incident around 03:00 pm in the month of Ramdan he along with Abdul Sahid, A. Rab, A. Suvan, Mujibur, A. Rafique where proceeding to Daboka market and when they reached the road to Rajab Ali's house, Ayub Ali Bhuyan, Ansar Ali Bhuyan, Ostar Ali Bhuyan, Rajab Ali and Akhtar Ali came out of Rajab Ali's house with dao, spears and daggers in their hands and charged towards them shouting "dhar" "dhar" (catch them). To save themselves all of them ran hither and there and he entered the house of Mannan which was about 200 yards from the road. This evidence remained unshaken by the Page No.# 11/14 evidence.
27. PW.4 Md. Abdul Mannan in his evidence deposed that on the date of the incident around 03:00/03:30 pm while he was in the mosque, which is near to his house and on hearing a commotion he returned home. On reaching home when he asked his mother she replied that a person came running and entered their house and he saw that person. He identified the said witness and the same was the victim Abdul Mannan PW.1/PW.3. When PW.4 asked same person he informed that a fight was going on and when he opened the rare door of their house for him, said person left their premises. While living he noticed that cloth was wrapped around the head of said person from where it was bleeding. He also stated that house in his backside was owned by Ramjan Ali where his servants used to reside from where he heard sounds of wailing. He ran to said place and saw Abdul Sahid with bleeding injuries, struggling for life. He also saw Hazi Abdul Shovan and Abdul Rejjaak near Sahid and crying their. Being scared he returned home and later said Sahid died. In his cross examination by the defence, PW.4 stated that he did not see the informant when he found Sahid in the injured state and that he was not aware whether Ramjan Ali came later.
28. PW.7, Md. Abdul Rajak Khan in his evidence deposed that on the date of the incident around 03:00 pm while he was at home hearing heard hue and cry he came out of his house to the road in front of his house and saw Sahid going ahead in a run being chased by Ayub, Ustar, Anfar, Aftar, Ajmal, Arab and Rajab along with other persons. Sahid ran and entered the house of Yashin. He went to the school near the road and from there he saw Sahid being dragged out by Ustar and Aftar Ali from Yashin's house. He also stated that he saw Ustar firing at Sahid by pistol and other persons who came along with Ustar, caused injuries on Sahid by means of dao, stick and dagger etc. and after causing injuries to him they left. Then he came out of the school to go near Sahid but Aftar and Samar chased him by dealing him two/four fist blows. Thereafter he went to the place where Sahid was lying. It was under a coconut tree and Sahid was lying with injuries all over his body. Then he with Subhan (PW.6) took Sahid in a pushcart and proceeded towards Daboka hospital. During his cross-examination said PW.7 reiterated that that front side of Yashin's house is visible from his house and from the road he saw Sahid being chased by the accused persons. When he went Page No.# 12/14 to school near the road, he saw gunshot being fired by Ustar, other persons who were with Ustar encircled Sahid and assaulted him. After the accused persons left, he came near Sahid and Subhan also came there. PW.14, Investigating Officer during his cross-examination stated that PW.7 in a statement before him did not state that he was chased by the accused persons. As such they evidence of PW.7 to the extent of assaulting by the accused persons could not be unsettled by the defence.
29. PW.15, Dr. Anandaram Baruah, Joined Director of Health Services at Nagaon Civil Hospital at the relevant time proved the said Exhibit-3, Post Mortem Examination Report of the deceased and also his signature on it. The defence failed to unsettle the evidence of the injuries sustained by the deceased including the presence of the punctured wound on the pectoralis area in the verge of axilla that passed through the muscle and out in the axilla on the person of the deceased (Exhibit-3)clearly discloses about.
30. Puncture on a person of human body usually occurs by a pointed object and even a gunshot wound is a puncture wound. From said Exhibit-3 it can be seen that the puncture wound on the person of the deceased was on his pectoralis area in the verge of axilla that had passed through the muscle and out in the axilla. Normally bullet injury contains such existence of entry and exit wounds.
31. We have seen that though the prosecution witnesses in their evidence stated that Ustar shot at Sahid by pistol, but post mortem examination report (Exhibit-3) did not specifically disclose about gunshot injury on the person of the deceased. Recovery of the empty cartridge that was seized by police in the case by M.R. No. 13/1994, i.e., Exhibit.2 was given to the IO of the case by the informant in his house, but there is no evidence that empty cartridge of pistol was recovered from the place of occurrence. From the evidence on record we have also noticed about the land dispute between the side of the informant Hazi Ramjan Ali Khan with Ayub Ali Bhuyan and his family. Said Ayub Ali Bhuyan was the father of the appellant, one of the charge sheeted accused in the case, who expired during the trial of the case. Further, it is also in evidence that there was a marpit (commotion/fight) between the side of the informant and that of Ayub Ali Bhuyan (father of the appellant) and his men at the time of the incident. We have also seen from the evidence on record that the appellant along Page No.# 13/14 with his father and brothers led the other accused persons and chased the deceased and other persons of the informant, where the other accused persons accompanying the appellant and his father and brothers had dao, spears, daggers and lathi on their hands and it is in that fight said Abdul Sahid and other persons from the side of the informant were injured and Abdul Sahid, who was assaulted, died due to the injuries sustained by him.
32. From all these evidence it is clear that the prosecution could prove that the appellant his father Ayub Ali Bhuyan and his other brothers led other accused persons and fought with the side of the informant Hazi Ramjan Ali Khan. During such fight appellant led few other accused persons and chased Abdul Sahid, assaulted him and because of the injuries sustained by him in such assault, Abdul Sahid died. We have noticed that the PW.15, Dr. Anandaram Baruah, the Joined Director of Health Services at Nagaon Civil Hospital at the relevant time, who proved the Post Mortem Report of the deceased, Exhibit-3, in his cross- examination by the defence stated that the injuries sustained by the deceased were not sufficient to cause a death of a person in the ordinary course. We are also aware of the fact that by the impugned judgment the Trial Court acquitted 21 numbers of accused persons involved in the case.
33. Considering the entire aspect of the matter under which the victims were assaulted, the nature of injuries caused to the victims including the deceased, the weapons used etc. conclusion can be drawn that there was no premeditation or intention to cause death of by the appellant; rather, in course of the fight between the parties, the victim was assaulted by the appellant and other accused persons, who were led by the appellant.
34. Therefore, in our considered opinion, the accused-appellant could not have been convicted under Section 302/34 I.P.C. for committing murder as we did not find any such intention to cause death of the deceased Abdul Sahid. As such, we set aside the conviction of the accused-appellant under Section 302/34 I.P.C., and convict him under Section 304 Part-II I.P.C.
35. Since we have modified the conviction from Section 302/34 I.P.C. to Section 304 Part II, I.P.C, we also reduce the sentence to rigorous imprisonment for 5 (five) years. However, Page No.# 14/14 we are not interfering with the sentence of fine of Rs. 5,000/-, awarded by the learned trial Court and the default sentence. Accordingly, we modify the impugned judgment dated 02.04.2015, passed by learned Additional Sessions Judge, No.1, Nagaon in Sessions Case No. 55(N)/1996 to the extent above.
36. The period already spent by the appellant named above in custody, during investigation, trial and during pendency of this appeal shall be set off from the substantive sentence.
37. During pendency of this appeal, appellant Ustar Ali Bhuyan was granted bail by order dated 22.06.2015 passed in I.A. No. 118/2015. In view of the order passed today, bail of the said appellant stands cancelled. Appellant Ustar Ali Bhuyan @ Ostar Ali Bhuyan shall surrender before learned Additional Sessions Judge, No.1, Nagaon forthwith to serve out the sentence.
38. Accordingly, this criminal appeal is partly allowed by altering the conviction to the extent, noted above.
39. Registry shall return the LCR to the Court of learned Additional Sessions Judge, No.1, Nagaon with a copy of this judgment.
JUDGE JUDGE Comparing Assistant