Gauhati High Court
Page No.# 1/29 vs The State Of Assam And Anr on 20 April, 2021
Author: M. R. Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/29
GAHC010214072015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./293/2015
MD ABDUL SAHID LASKAR and 4 ORS
S/O IBRAHIM ALI LASKAR
2: MD. FAKRUL SILAM LASKAR
3: MD. FAIZUL ISLAM LASKAR
4: MD. KHAIRUL ISLAM LASKAR
5: MD. DIDARUL ISLAM LASKAR
ACCUSED/APPELLANT NOS. 2 TO 5 ARE SONS OF ACCUSED APPELLANT
NO. 1
MD. ABDUL SAHID LASKAR
ALL ARE RESIDENTS OF SUNDAURA
P.S. KATIGORAH
DIST. CACHAR
ASSAM
VERSUS
THE STATE OF ASSAM and ANR
2:MD. ANAM UDDIN
S/O LATE ABDUL MONAF
R/O SUNDAURA
P.S. KATIGORAH
DIST. CACHAR
ASSAM
PIN 78880
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Advocates for the Appellants : Mr. Bijan Kumar Mahajan,
Mr. Arshad Choudury,
Mr. Rahman Ali,
Mr. Pranab Kumar Das,
Mr. NayanJyoti Das.
Advocates for the Respondents : Mr. Hrishikesh Sarma,
Additional Public Prosecutor, Assam,
For the respondent No. 1.
Mr. Rabindra Chandra Paul,
For the Informant/Respondent No. 2.
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT AND ORDER (CAV)
Date : 20-04-2021
(M. R. Pathak, J)
Learned Additional Sessions Judge (FTC), Cachar, Silchar by judgment dated
31.08.2015 passed in Sessions Case No. 21/2010, arising out of Katigorah Police Station Case
No. 491/2008, corresponding to GR case No. 3462/2008, convicted the appellants/accused
persons under Sections 148/447/302/323 IPC read with Section 149 IPC for committing the
crime, forming an unlawful assembly, armed with deadly weapons, prosecuted the common
object, criminally trespassed into the homestead boundary of Abdul Monaf so as to commit
the offence and killed said Abdul Monaf by assaulting him on his head, a vital part of the
body and also voluntarily caused hurt on the person of one Rustom Ali, son of said Abdul
Monaf.
2) Said Additional Sessions Judge (FTC), Cachar, Silchar by order dated 04.09.2015
passed in Sessions Case No. 21/2010, sentenced the accused appellant No. 1, considering his
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old age (i) to undergo simple imprisonment for life with fine of Rs. 5,000/- under Sections
302/149 IPC, in default of payment of fine, simple imprisonment for one year; (ii) to undergo
simple imprisonment for six months under Sections 148/149 IPC; (iii) to pay fine of Rs. 500/-
under Sections 447/149 IPC and (iv) to pay fine of Rs. 500/- under Sections 323/149 IPC.
3) By the said order dated 04.09.2015, passed in Sessions Case No. 21/2010 learned
Additional Sessions Judge (FTC), Cachar, Silchar sentenced the accused appellant Nos. 2 to 5
- (i) to undergo rigorous imprisonment for life with fine of Rs. 5,000/- each under Section
302/149 IPC, in default of payment of fine, rigorous imprisonment for one year each; (ii) to
undergo simple imprisonment for six months each under Sections 148/149 IPC; (iii) to pay a
fine of Rs. 500/- each under Section 447/149 IPC, in default of payment of fine, simple
imprisonment for one month each and (iv) to pay a fine of Rs. 500/- each under Section
323/149 IPC, in default of payment of fine, simple imprisonment for one month each.
4) The Additional Sessions Judge (FTC), Cachar, Silchar regarding the order of sentence
dated 04.09.2015, categorically observed that on realization of fine from the accused
persons, the same shall be paid to the legal heir of the deceased Abdul Monaf under Section
357 CrPC.
5) Being aggrieved with the said judgment of conviction dated 31.08.2015 and the order
of sentences dated 04.09.2015 passed against them by the Additional Sessions Judge (FTC),
Cachar, Silchar in Sessions Case No. 21/2010, the accused persons have preferred this
appeal.
6) Heard Mr. Bijan Kumar Mahajan, learned Counsel, appearing for the accused appellants
submitted that by the impugned judgment the learned Trial Court arbitrarily and illegally
convicted the accused appellants though the defence brought sufficient contradictions to the
notice of the said Court with regard to the evidence adduced by the prosecution. From the
evidence of the prosecution witnesses, Mr. Mahajan, learned Counsel for the accused
appellants tried to establish before the Court that the prosecution not only failed to prove the
guilt of the accused appellants beyond all reasonable doubt but also failed to prove that at
the time of the incident the accused appellants formed an unlawful assembly, that they were
armed with weapons and prosecuted with the common object of that assembly. Mr. Mahajan
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submitted that by adducing its evidence the prosecution failed to lead to the only and
inescapable conclusion that the accused appellants used criminal force, indulged in violence
in committing the offence of rioting and in causing grievous hurt on Abdul Monaf, resulting in
his death and that they severely injured Rustom Ali, son of said Abdul Monaf. Mr. Mahajan
also submitted that the Trial Court did not consider the replies of the accused persons to the
queries made under Section 313 CrPC while delivering the impugned sentence dated
31.08.2015 and order of conviction dated 04.09.2015, although it is the solemn duty of the
Court to adequately consider the same while dispensing justice, either to accept or to reject
the same for reasons specified in writing. As such Mr. Mahajan submitted that since the
evidence of the prosecution brought against the accused appellants were demolished by the
defence and since the Trial Court, without considering those materials in proper perspective,
convicted the accused appellants by the impugned judgment dated 31.08.2015 and
sentenced them by the order dated 04.09.2015, therefore, those are to be set aside and
quashed and the accused appellants should be set at liberty.
7) In support of his argument, Mr. Mahajan, learned counsel for the accused appellants,
placed the following judgments:-
(1972) 3 SCC 671 [Khatri Hemraj Amulakh Vs. The State of Gujarat], (1976) 4 SCC
394 [Lakshmi Singh and Others Vs. State of Bihar], (2002) 2 SCC 737 [Deepak
Kumar Vs. Ravi Virmani and Another], (2003) 2 SCC 401 [Lallu Manjhai and Another
Vs. State of Jharkhand], (2003) 9 SCC 426 [State of M.P. Vs. Mishrilal (Dead) and
Others], (2005) 11 SCC 245 [Balwan Singh Vs. State of Haryana], (2012) 4 SCC 379
[Jai Prakash Singh Vs. The State of Bihar and Another], (2016) 13 SCC 171
[Bhagawan Sahai and Another Vs. State of Rajasthan, (2019) 13 SCC 289 [Reena
Hazarika Vs. State of Assam].
8) On the other hand, Mr. Hrishikesh Sarma, learned Additional Public Prosecutor, Assam,
for the State submitted that the prosecution had proved the guilt of the accused persons
beyond all reasonable doubt and the learned Trial Court, after weighing the evidence adduced
by the prosecution correctly, convicted and sentenced the accused appellants by the
impugned judgment and order dated 31.08.2015 dated 04.09.2015 respectively. Mr. Sarma,
learned Additional Public Prosecutor, submitted that as the accused persons of the case have
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been rightly convicted, the impugned judgment of conviction dated 31.08.2015 and the order
of sentence dated 04.09.2015 does not call for any interference by the appellate Court.
9) Mr. Rabindra Chandra Paul, learned counsel, aappearing for the informant of the case,
namely, Md. Enam Uddin, respondent No. 2 (PW.1); supported the impugned judgment of
conviction and sentences imposed upon the accused appellants and submitted that the same
have been rightly determined. By placing the certified copy of the Judgment dated
31.08.2015 passed by the learned Additional Sessions Judge (FTC), Cachar, Silchar in
Sessions Case No. 273/2010, arising out of Katigorah Police Station Case No. 344/2008, i.e.,
the cross case filed by the accused appellants against the brothers of the informant and
others pertaining to the same incident, Mr. Paul submitted that the same was dismissed due
to deliberate concealment of facts from disclosure and explanation. Mr. Paul, therefore,
submitted that the impugned judgment of conviction and sentence against the accused
appellants does not call for any interference.
10) The case of the prosecution is that on 12.09.2008 around 07:30 p.m., one Enam
Uddin (PW.1), son of late Abdul Monaf, resident of Village Sundaura of Kalain Police Patrol
Post under Katigorah Police Station, District-Cachar, Assam lodged a written ejahar (Exhibit-
1) before the Officer-in-Charge of Katigorah Police Station, District-Cachar, against the
present accused appellants and six others who are from the same locality and under the
jurisdiction Katigorah Police Station, stating that on the previous morning on 11.09.2008
around 07:00 a.m. the accused persons, armed with sharp weapons, by forming an unlawful
assembly, criminally trespassed in his house, forcibly pulled out his father Abdul Monaf and
brother Rustom Ali, hit them with sharp weapon on their head, flung them in the courtyard of
the house, assaulted them and then dragged them to the front side of the house, continued
to assault them with dagger, dao, ballam (spear) and lathi (stick) etc. and because of such
assault his father died on the spot whereas his brother laid unconscious. In the said FIR, the
informant (PW.1) also stated that thinking both the injured persons to be dead, the accused
persons fled away from the place of occurrence, yelling that as regards the said incident if
any court case is registered, then during the trial, one of them would confess before the
Court of committing the murder and thereby they shall save the other persons from life
imprisonment and would eliminate the clan of the informant. The informant in the FIR also
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stated that his injured brother is under treatment at Silchar Medical College and Hospital and
fighting for life and further mentioned that in order to grab a portion of their homestead land,
by filing several baseless cases, the accused persons were harassing them continuously. By
the said ejahar, the informant requested the authority concerned to take the necessary steps
to arrest the accused persons, to investigate the matter and to take action as per law and
submitting therein that the delay in lodging the ejahar was caused as they were busy with
the funeral of their father.
11) On receipt of said FIR, Katigorah Police Station Case No. 491/2008 under Sections
147/148/149/447/448/326/302 IPC corresponding to G.R.No. 3462/2008 was registered
against the accused persons.
12) From the records of the case it is seen that on 11.09.2008 one Khairul Islam Laskar of
Sundaura Village verbally informed Kalain Police Patrol Post under Katigorah Police Station
that in the morning of the same day one Abdul Monaf assaulted his brother Faizul Islam
Laskar and grievously injured him who has been admitted in Kalain Community Health
Centre, (CHC, in short), with severe injuries. The said information was registered as Kalain
Patrol Post GD Entry No. 212 dated 11.09.2008 (Exhibit-8) and after registering the same, the
concerned in-charge of the said police outpost proceeded to the Kalain CHC.
13) The said in-charge of Kalain Patrol Post on reaching the Kalain CHC found said Abdul
Monaf on its veranda, who was declared dead by the doctor of the said Centre and found his
son Rustom Ali in critically injured condition. On the other hand the said police in-charge also
found Fairul Islam Laskar and Faijul Islam Laskar, sons of Md. Abdul Sahid Laskar of Sundaura
Village in heavily wounded condition and on being referred by the doctor of Kalain CHC, both
of them were sent to Silchar Medical College Hospital (SMCH, in short), Silchar. The said in-
charge of Kalain Patrol Post in presence of the Officer-in-Charge of Kalain Police Station made
inquest of the deceased Abdul Monaf at Kalain CHC itself, prepared the Inquest Report
(Exhibit-3) in presence of witnesses, sent his dead body to the SMCH, Silchar for its post-
mortem examination escorted by a police constable and on being referred by the doctor of
said Kalain CHC, forwarded the injured Rustom Ali to the SMCH, Silchar escorted by a Home
Guard.
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14) The concerned police in-charge on 11.09.2008 itself visited the place of occurrence,
drawn its sketch map (not exhibited), recorded the statements of the persons acquainted
with the alleged crime under Section 161 CrPC and found that in the early morning on
11.09.2008, when Fakrul Islam Laskar and his brothers wanted to plough the adjacent land of
Abdul Monaf, a land dispute aroused due to which a commotion took place between both the
parties and a fight took place between both the parties in the compound of said Abdul Monaf,
in which members of both the side were injured. Said Abdul Monaf was brought to the Kalain
CHC in a critically injured condition, where the doctor declaredhim dead. The said in-charge
asked both the parties to lodge FIR, he seized the weapon of offence from the place of
occurrence in presence of witnesses by preparing seizure memo (Exhibit-2) that consist of (i)
one blood stained medium size branch of tree, (ii) one blood stained Jata (sharp weapon)
affixed with bamboo, approximately of five feet in length, (iii) one blood stained hammer,
affixed with wooden handle and (iv) some broken bamboo fencing. From the place of
occurrence, the said police personnel, , had also seized one brown colour half wet cotton
lungi with reddish spot on it, in presence of witnesses, preparing a Seizure Memo (MR No.
174/2008) (Exhibit-9) and recorded all those in the Kalain Patrol Post GD Entry No. 215
dated 11.09.2008.
15) During investigation of the case the Investigating Officer arrested the accused
persons, collected the Medical Report of the injured Rustom Ali from the Kalain CHC on
15.09.2008 (Exhibit-4), Post Mortem Report of the deceased Abdul Monaf dated 11.09.2008
from the SMCH (Exhibit-5), In-patient Bed Head Ticket along with the Injury Register of said
Rustom Ali from said SMCH (Exhibits - 6 & 7)and on completion of the investigation of the
case, the concerned Investigating Officer, finding prima facie materials against the accused
persons, submitted the Charge Sheet in said Katigorah PS Case No. 491/2008 on 16.08.2009
vide No. 166/2009 under Sections 147/148/149/447/ 448/323/302 IPC, against eleven
numbers of accused persons, including the present accused appellants (Exhibit-10).
16) As the charge sheet in Katigorah PS Case No. 491/2008 contains charge under
Section 302 IPC, which can be adjudicated by the Court of Sessionsonly, the learned Chief
Judicial Magistrate (CJM), Cachar, Silchar by order dated 04.01.2010 committed the said G.R.
Case No. 3462/2008 (arising out of Katigorah PS Case No. 491/2008) to the Court of learned
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Sessions Judge, Cachar, Silcharand inthe Court of learned Sessions Judge, Cachar, said G.R.
Case No. 3462/2008 was re-registered and numbered as Session Case No. 21/2010. The
learned Sessions Judge, Cachar, Silchar by order dated 26.03.2010 transferred the said
Sessions Case No. 21/2010 to the Court of learned Additional Sessions Judge (FTC), Cachar,
Silchar for its disposal.
17) Finding prima facie materials, the learned Additional Sessions Judge (FTC), Cachar,
Silchar, i.e., Trial Court by order dated 13.04.2010 passed in said Session Case No. 21/2010
framed charges under Sections 148/447/323/302/149 IPC against all the eleven accused
persons named in the Charge Sheet of said Katigorah PS Case No. 491/2008, including the
present appellant Nos. 1 to 5 and those 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.
18) During the trial of the case, one of the accused, Sairul Islam expired on 13.11.2014
and therefore the Trial Court by order dated 07.01.2015 passed in said caseabetted the
Session Case No. 21/2010 against the said deceased accusedSairul Islam.
19) To bring home the charges against the accused persons of the case, including the
appellants herein, the prosecution examined eleven witnesses before the Trial Court and
exhibited ten documents noted aboveand the defence cross examined the prosecution
witnesses. After conclusion of recording of evidence of the prosecution witnesses, the Trial
Judge on 30.01.2015 recorded the statements of the accused persons (appellants herein)
under Section 313 CrPC in which the accused persons denied all the acquisitions made
against them by the prosecution and they submitted that they were innocent.However, the
defence did not adduce any evidence from their side.
20) In order to appreciate the arguments, advanced by the learned counsels appearing
for both the parties and to examine the correctness of the impugned Judgment and the Order
of conviction, it will be appropriate to briefly scrutinize the evidence on record.
21) PW.1,Md. Enam Uddin, informant of the case and son of the deceased, deposed
before the Court that on the date of occurrence i.e., on 11.09.2008 around 07:00 am while he
was sleeping in his house, hearing hue and cry he woke up and saw that the accused persons
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- Fakrul Islam, Khairul Islam, Faizul Islam, Sairul, Dedul @ Didural Islam and Abdul Sahid
with deadly weapons like dao, lathi and bollom etc. in their hand trespassed to their
homestead, entered their house, forcefully pulled out his elder brother, Rustom Ali and
assaulted him, thereby caused serious injuries on his person. Said PW.1, also stated that all
those accused persons dragged out his father, Abdul Monaf, assaulted him in the courtyard of
his house, causing injuries on his person. Later, he took them to the Kalian CHC, where its
Doctor declared his father Abdul Monaf as dead. Later on Police sent his brother, Rustom Ali
to the SMCH, Silchar for his medical treatment and also forwarded the dead body of his father
Abdul Monaf for its post mortem examination. He deposed that immediately after the incident
,and informed the police and as per suggestion of the police he at first took his injured
brother and father for their medical treatment and that on the following day, after returning
from SMCH, Silchar he lodged the FIR. PW.1 proved the FIR of the case, i.e., Exhibit-1, his
signature on it and also identified the accused persons.
22) During his cross-examination by the defence, PW.1 stated that the accused persons
are brothers, where accused Abdul Sahid is their father and the two accused, Abdul Suban
and Altaf Hussain are co-villagers. He stated that the land adjacent to their homestead
belongs to them, but prior to the said incident, the accused persons dispossessed them from
the said land. He also stated that the adjacent paddy land was purchased by them and that
they have a sale deed regarding such purchase. He also stated that they had opened a shop
over it prior to the incident and that the Kalain PWD road runs adjacent to their house and
that their houses are on both the sides of the said road. He also stated that there are houses
adjacent to their house on the either side of the road. He further stated that the occurrence
continued for about 1 ½ hours and when they raised alarm about 200 to 300 people
gathered at the place of occurrence and though they requested the accused persons not to
assault, but the accused persons did not pay any heed to it. PW.1 denied the suggestion that
the accused persons did not trespass in their homestead land and also denied that they did
not assault his father and brother entering into their house. He deposed that Rustom
sustained injury on his hand, chest and thigh, whereas dao blow was given on the head of his
father. But said PW.1 during his cross by the defence stated that he cannot say as to who
gave the dao blow on the head of his father. He deposed that the accused Fakrul and Faizul
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have two separate houses, where one is old and the other is new and he denied the
suggestion that while Fakrul was proceeding towards his old house from the new house, he
was forcibly taken inside their house by his father Abdul Monaf and that he along with his
brother Rustom Ali assaulted said Fakrul and that after few moment, Faizul was also
assaulted in their courtyard. PW.1 denied that those persons escaped and fell into their
paddy land and then they assaulted them in the paddy filed as well as on the road. He also
stated that for the same incident, Nihar Begam wife of the accused, Fazul Islam, lodged an
ejaharagainst him, his father Abdul Monaf and brothers Rustom Ali, Samim Ahmed, Fariz
Uddin, Somar Ali. But said PW.1 denied the suggestion that they assaulted Faizul and Fakrul
Islam severely and also denied that Fakrul was assaulted in neck by bollom and later it was
pulled out. He stated that he does not know whether Fakrul and Faizul went to Kalain CHC
and whether they were referred to the SMCH, Silchar. He stated that prior to the said incident
a case of dacoity was lodged against his father Abdul Monaf and brothers Rustom and Fariz
Uddin for alleged commission of dacoity in the house of Fakrul. He also denied that being
annoyed with the filing said case of dacoity against his father and brothers; they forcibly took
Fakrul and Faizul inside their house and assaulted them. He stated that in the morning on the
date of the incident, they went to police station, but could not say anything before police on
their first visit, as police asked them to take the injured persons to hospital first. PW.1 stated
that although he wanted to inform the police about the incident, but he could not say
anything to them since as per advice of police injured persons were taken to the hospital. He
stated that ejahar was written by a scribe, but he did not remember his name and also
denied that he did not mention in the FIR or did not state before Police during investigation
that he wanted to inform Police about the incident, but Police did not allow him to say
anything more.
Accused Namar Ali, Kalilor Rahman and Atai Mia, declined to cross examine the said
PW.1.
23) PW.2,Rustom Ali, tailor by profession, another son of the deceased and brother of
the informant PW.1, deposed before the Court that the occurrence took place on 11.09.2008
around 07:00 am. He deposed that his tailoring shop is at Sundaura in front of the house of
his younger brother Farizuddin and that he used to keep the key of his shop in the house of
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his said younger brother. On the date of the incident around 07:00 am he went to the house
of Farizuddin to bring the key of his shop and when he just stepped in the verandah of the
house of said Farizuddin, accused persons Fakrul Islam, Khairul Islam, Foizul Islam, Sairul,
Didul @ Didarul and Abdul Sahid suddenly appeared at that place, assaulted him with borga
(wooden piece), dagger etc. due to which he sustained injuries on the little finger of his left
hand as well as on his left leg and that the accused Khairul Islam gave him a bollom blow on
his left chest. He stated that because of such assault, he fell down on the ground and
thereafter, the accused persons pulled out his father Abdul Monaf from his house, assaulted
him with dao, dagger, bollom, Jata etc. and due to such assault of the accused persons, his
father died on the spot. He also deposed that he and his father were taken to Kalain CHC
where doctor declared his father as dead and then he was sent to SMCH where he was
treated as an in-patient for about 27 days. He identified the all the accused person in the
dock and stated that his brother Enam Uddin (PW.1) lodged the FIR of the case.
24) During his cross examination by the accused Abdul Sahid Laskar, Khairul Islam, Fakrul
Islam, Didural Islam, Foizul Islam and Soiful Islam, said PW.2 stated that his house is at
Kurkuri Part-1 and house of his father Abdul Monaf and other brothers are at Sundaura and
that the accused persons Fakrul and Faizul have two separate homestead, one is old, which is
at village Sundaura and the other is new, at Kurkuri Part-1, which is about one kilometre
away from their old house at village Sundaura. He also stated that the village Sundaura as
well as the area around the house of his father,was densely populated. He denied the
suggestion that he does not have a tailoring shop at Sundaura in front of the house of his
brother Farizuddin and also denied the suggestion that he did not state before police that the
accused persons assaulted him on the little finger of his left hand, left leg and that the
accused Sairul did not give him any bollom blow on left side of his chest and other three
places in his body.
PW.2 in his cross examination also stated that he did not know that his brother Foriz
Uddin had married Rehana Begum, daughter of Bokkor Ali of village Nutanpur and also had
no knowledge whether Rehana Begum had filed any criminal case against him, his brother
Foriz and father Abdul Monaf and is also not aware of lodging of case by Abdul Hussain
Tapadar of village Kurkuri Part-1 against him, his father Abdul Monaf and brother Foriz Uddin
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for causing grievous hurt. He stated that before the said incident, the accused Fokrul filed a
criminal case against him, his father as well as brother being G.R. No. 2530/2008 allegedly
for committing dacoity. He also denied the suggestion that on the date of occurrence while
accused Fokrul was proceeding towards his new house from the old one, when he reached
the front of their house, his brother Foriz along with his father Abdul Monaf forcibly dragged
Fokrul from the road to the courtyard of Foriz, wherein Fokrul was assaulted with sharp and
blunt weapons causing severe injuries on his person. He also stated that accused Fokrul
lodged a case against them with false allegation that he was dragged to the courtyard of the
house of Foriz and was assaulted there and that the said case is pending before the Court. He
denied the suggestion that the accused persons did not enter into the courtyard of the house
of Foriz and also denied that the accused persons did not assault him and his father, causing
death of his father.
The other accused persons declined to cross examine said PW.2.
25) PW.3,Musst. Jahanara Begum, wife of Forizuddindeposed that the incident occurred
around 07:00 am on 11.09.2008. She stated that while she was sweeping the courtyard of
her house, Rustom Ali, her brother-in-law (PW.2), came to their house to take the key of his
shop and at that point of time the accused persons -Fokrul Islam, Faizul Islam, Khairul Islam,
Didul Islam, Sairul Islam, Abdul Sahid and others suddenly came and assaulted her brother-
in-law Rustom Ali in the verandah of their house with rod, dagger, jhata, bollom, hammer
etc., due to which her said brother-in-law fell down on the ground. Then the accused
persons dragged her father-in-law Abdul Monaf from his house to the courtyard and assaulted
him with iron rod, jhata, daggar, bollom etc. She stated that her father-in-law Abdul Monaf
was given blow on his head with an iron rod by the accused Fokrul Islam, the accused Foizul
Islam gave jhata blow on his body and the accused Khairul Islam assaulted him with jhata
and bollom. She deposed that the accused Didul, Sairul, Abdul Sahid also assaulted her
father-in-law Abdul Monaf with dagger. Seeing all these, she cried and shouted for help and
then her sister-in-laws Rina and Raina and brother-in-laws Enam and Samil came from their
old homestead. She deposed that their old house where Enam and Samil reside is about five
to seven minutes distance by walk and all of them took the injured persons to Kalain CHC
first, where the doctor declared her father-in-law Abdul Monaf as dead. PW.3,deposed that
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later on her brother-in-law, Rustom Ali along with the dead body of her father-in-law Abdul
Monaf were sent to SMCH and that during investigation one lathi, hammer, bollom, dagger
were seized by police preparing a seizure memo, Exhibit-2. PW.3 proved her signature in the
said Exhibit-2, seizure memo. She deposed that out of the seized articles some were
available in the Court and that Material Exhibits - 1, 2 and 3 were lathi, jhata and hammer,
respectively.
26) The accused persons Abdul SahidLaskar, Khairul Islam, Fokrul Islam, Didarul Islam,
Foizul Islam and Saiful Islam cross examined said PW.3. During her cross examination by
those accused persons, PW.3 stated that she did not remember her date of marriage and the
date of birth of her children and that she gave birth to a male child about 13 days prior to the
said incident and that she was sick at the relevant time. She denied the suggestion of the
defence that she did not state before police that when she was sweeping the courtyard, her
brother-in-law, Rustom Ali came there to take the key of his shop and she denied all the
suggestions made on behalf of the accused persons. She also denied the suggestion that on
the date of occurrence when the accused Fokrul reached the front of their house while he
was proceeding to his new house from the old, her father-in-law Abdul Monaf and brother-in-
laws dragged him to their courtyard and assaulted him severely and that her brother-in-law
Rustom Ali gave him a bollom blow on his neck. PW.3 denied having knowledge of any case
pending with regard to the said allegation of assault on Fokrul and Foizul. She also denied
the suggestion that the accused persons did not enter their homestead and did not assault
her father-in-law and brother-in-law.
The rest of the accused did not cross examine PW.3.
27) PW.4, Samil Uddin, another son of the deceased Abdul Monaf, deposed that he did
not remember the date of the incident and that at the time of occurrence he was in his old
homestead at Karkari Pt.1 and that the distance between their old homestead and the new
one is intervened by 3/4 houses. He deposed that hearing public outrage he went to his new
homestead at Sundaura and saw that accused persons Fokrul Islam, Khairul Islam, Didul
Islam @ Didarul, Sairul Islam and Abdul Sahid were assaulting his father Abdul Monaf and his
brother Rustom Ali with lathi, jhata and hammer and after assaulting them, those accused
persons left the place. He also deposed that the accused persons assaulted his father and
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brother in the courtyard of their house and thereafter his father and elder brother Rustom Ali
were taken to Kalain CHC, where after examining them, doctor declared his father Abdul
Monaf as dead and referred his injured brother Rustom Ali to SMCH. He also deposed that
the occurrence took place around 07:00 in the morning and that his sister Rina Begum took
his injured brother to SMCH and later police conducted inquest over the dead body of his
father Abdul Monaf, prepared the Inquest Report, Exhibit-3 and he proved his signature on
said Exhibit-3.
28) The accused persons Abudl Sahid Laskar, Khairul Islam, Fokrul Islam, Didarul Islam,
Foizul Islam and Saiful Islam cross examined said PW.4 in which the said witness described
his house as well as the house of the accused persons and also stated that a junction is
situated about one furlong away in the northern side from their new house and about two
furlong away from that junction, by the side of Bazarichera Channel they use to reach their
old house and on his arrival at the place of occurrence he found about hundred of persons
gathered therein But he stated that he cannot remember and say the names of all those
persons present at that place and also cannot say whether their neighbours were present
amongst the said gathering or not. He also denied the suggestion that on the date of the
incident while accused Fokrul was going to his new house from his old house, on his way
when he reached the front of their house, at that time, his father Abdul Monaf and brother
Rustom Ali and others dragged him to the courtyard of their house from the road and
assaulted him severely and that his brother Rustom Ali gave bollom blow on his neck.
However, in his cross examination, said PW.4 stated that Nehara Begum, wife of the accused
Foizul lodged a case against him and others regarding the alleged assault, which is pending in
the Court.
Cross examination of the said PW.4 was declined by the other accused persons.
29) PW.5, Rina Begum, daughter of the deceased deposed that informant EnamUddin is
her brother, deceased Abdul Monaf was her father, injured Rustom is her brother and that she
knows the accused personsand also deposed that the occurrence took place in the morning
around 07:00 am and at that time she was at her house. She deposed that Faizul, Fakrul,
Khairul, Sairul, Didul, Abdul Sayed, with dao, hammer, lathi and bollom entered their house,
dragged out her father Monaf and brother Rustom to the courtyard and assaulted them with
Page No.# 15/29
those weapons and because of such assault, her father died on the spot and brother Rustom
sustained severe injuries on his person. She deposed that they tried to resist the accused
persons but they did not pay any heed to their request. After such assault, her father and
brother were taken to Kalain CHC where her father was declared dead and brother Rustom
was referred to SMCH.She deposed that she was present at the time of occurrence and when
police visited the place of occurrence and that from their courtyard, police seized one lathi,
one jhata and one hammer, Material Exhibits -1, 2 and 3 respectively and that she was a
signatory to the seizure of those materials and also proved her signature on the relevant
seizure memo.
30) The accused Abdul Sayed Laskar, Khairul Islam, Fakrul Islam Didul Islam, Faizul Islam
and Saiful Islam cross examined said PW.5 during which she described the houses of their
neighbours, both in the adjacent and of the opposite side of the road. She stated that there
were about thirty persons assembled at the relevant time whose names she did not
remember and that it takes about five minutes time to reach their old houses by walk,
wherein her brother resides and that the house of her husband, Kamrul Islam is about fifteen
Kms away from her paternal house and that her sister Raina Begum, married to Islamuddin,
who resides at village Bhangarpar, about 12/13 Kms away. She denied the suggestions made
by the accused persons and stated that she knew both the houses of the accused persons,
old and the new and that to reach the new house from the old house, the accused persons
had to pass the road besides which their house is situated. She denied the suggestion that
that on the date of the incident when accused Fakrul was proceeding towards his new house
from the old and when he reached in front of their house, Rustom Ali, Farid Ali and her other
brothers along with her father Abdul Monaf forcibly dragged Fakrul from the road to the
courtyard to their new house and assaulted him with dao and other blunt weapon causing
severe injury on his person. She stated that she did not see any injury on the persons of the
accused Faizul and Fakrul.
31) PW.6, Raina Begum, another daughter of the deceased, deposed that while she was
at her home on the date of the incident, around 07:00 am the accused persons, Faizul,
Fakrul, Khairul, Didul, Sayrul, Abdul etc. came to their house entered and dragged her father
Abdul Monaf and brother Rustom Ali to the courtyard and assaulted them with lathi, dao,
Page No.# 16/29
bollom, hammer etc., due to which, her father died on the spot and her brother Rustom Ali
was injured seriously and that both of them were taken to Kalain Hospital, where her father
was declared dead and brother Rustom was referred to SMCH and that the dead body her
father was also taken to SMCH for post mortem examination.
32) PW.6 in her cross examination by the accused Fakrul Islam, Khairul Islam, Faizul
Islam, Sairul, Dedul @ Didural Islam and Abdul Sahid, stated that about fifty people gathered
at the relevant time in the place of occurrence and that she was aware about the fact that
with regard to the same incident, the accused persons had filed a complaint case against her
father and brothers and that the same was pending before the Court. She denied the
suggestion that on the date of occurrence while accused Fakrul was proceeding towards his
new house from the old, on his way when he reached in front of their house, at that time her
brothers and father forcibly dragged said Fakrul from the road to their courtyard and
assaulted him with sharp and blunt weapons, that caused grievous injuries on his person.
PW.6 also denied the suggestion made on behalf of the accused that to save her father and
brothers, the case in hand was initiated with false allegation against the accused person.
The other accused persons declined to cross examine said PW.6.
33) PW.7, Jalaluddin Hazari, contractor of a tea estate deposed that he knows the
accused persons and that the incident took place around 7:00 in the morning. He deposed
that when he on his bicycle was proceeding towards the house of Monaf Ali, he saw the
accused persons gathered at the house of Monaf Ali and also witnessed that the accused
persons Faizul, Khairul, Fakrul, Didural, Shirul, Abdul Sahid were assaulting Monaf Ali and his
son with lathi, jhata etc., PW.7 stated that when he came forward, he saw Monaf Ali dead and
then he left for work. He also stated that police recorded his statement.
34) During his cross examination by the defence, PW.7 stated two different tea gardens at
Kurkuri and Kalainwere there near the place of occurrence and that to reach Kalian he is
required to go through the road leading to Raoghat from Kalain and stated that if any person
intends to go to the Kalain Tea Estate from his house, he need not travel through the Kalain
Baikunthapur road, besides which, the house of Monaf Ali is situated and that the house of
Monaf Ali is about 2½ Kms away from his house. He denied that he did not state the names
of accused persons Khairul, Faizul, Fakrul, Didarul, Sariul and Abdul Sahid whom he saw
Page No.# 17/29
armed with lathi, jhata etc. and assaulting the victim Monaf Ali and his son.
35) PW.8 is Dr. Anil Kumar Sinha, a doctor of SMCH, Silchar who appeared before the
Trial Court with the Bed Head Ticket of the victim Rustom Ali (Record of Admission of said
hospital dated 11.09.2008), Exhibit-6; Injury Register of said Hospitalpertaining to the said
victim Rustom Ali, Exhibit-7, where the said victim was examined by Dr. Padma Taid. From
those records the victim Rustom Ali found to have suffered the following injuries, namely -
i) Swelling and deformity on his left thigh.
ii) Abrasion of size 10 cm x ½ cm over the ulna aspect of right forearm.
iii) Abrasion of size 2 cm x 1 cm over left axilla.
iv) Swelling and tenderness of neck.
PW.8 identified the Exhibit-6, the Bed Head Ticket of said injured victim Rustom Ali
(PW.3) and Exhibit-7, injury report of the said victim and those were proved in original. Said
PW.8 stated that the victim Rustom Ali was admitted in the SMCH, Silchar on 11.08.2208 and
was discharged on 14.09.2008 and that the said victim was examined by Dr. Padma Tied,
who was no longer in service inthe said hospital at Silchar.
36) During his cross examination by the defence, PW.8 the concerned doctor stated that
the injuries found on the person of victim Rustom Ali were superficial, and that such injuries
may also caused due to fall on hard substance. He also stated that RTA means Road Traffic
Accident and that in the column of diagnostic of Exhibit-A, discharge certificate of the victim
Rustom Ali,it was stated that his injuries were followed by RTA. Said PW.8 stated that
Exhibit-A(1) contains the signature of Dr. Padma Taid and that in the Exhibit-7(1), there was
no reference of any case and those type of injuries may be caused by RTA.
37) PW.9, Dr. Badal Das was the in-charge of Kalain CHC at the relevant point of time.
He on 11.09.2008,i.e., on the date of the incident, at 09.30 am on the request of police
examined the victim Rustom Ali (PW.2) and found the following injures on the person of the
said victim. Said PW.9, accordingly prepared the injury report the Exhibit-4 of the said victim
mentioning the following injures found on the person of injured Rustom Ali, which are -
i) One contusion mark on left hand of size 3 cm x 2 cm x 1 cm.
ii) Lacerated wound on left leg, lateral side of size 2 cm x 1 cm x 1 cm.
iii) A cut wound on left armpit of size 2 cm x 1 cm x 1 cm.
Page No.# 18/29
PW.9 deposed that after preliminary treatment, theinjured Rustom Ali was referred to
SMCH, Silchar and that all the injuries sustained by the said victim were simple in nature and
were caused by blunt objects. Said PW.9 identified his signature on Exhibit-4, the injury
report of said victim Rustom Ali. PW.9 also stated that he did not mention the age of the
injuries in the injury report and he deposed that laceration of said victim might have been
caused by falling on any substance and that he was not sure as to how the injury No. 3, the
cut wound on the victim, was caused. He stated that he did not mention that the three
injures of the victim might have been caused by sharp objects and also stated that on
11.09.2008 around 09:00 am, he had also examined Fakrul Islam as well as Faizul Islam, both
sons of Md. Abdul Sahid and found injures on their person. Said PW.9 also identified the
Exhibit-3, Inquest Report of the deceased Abdul Monaf and his signature on it.
38) PW.10, Dr. Gunajit Das, the autopsy doctor of SMCH, Silchar, who conducted the
post mortem examination of the decease Abdul Monaf in the said hospital on 11.09.2008
around 03:20 pm. During such examination said PW.10 found presence of Rigor Mortis all
over on the body of the deceasedAbdul Monaf and also found the following injuries on his
person:-
i) Pressure abrasion of size 5 cm x 5 cm at the superior aspect of left shoulder.
ii) Pressure abrasion of size 6 cm x 1 cm at the lateral aspect of the middle of right arm.
iii) Lacerated injury of size 3 cm x 2 cm at the dorsal aspect of left elbow joint, exposing
underlying bones.
iv) Lacerated injury of right parietal scalp 6 cm x 2 cm placed at the middle part and scalp
deep.
v) Subdural haemorrhage covering the whole right parietal area.
vi) Brain congested.
PW.10, the concerned autopsy doctor found the rest of the organs of the said
deceased healthy and he opined that the death of the deceased Abdul Monaf was caused due
to coma, resulting from the injuries sustained in his head and that all the injuries were anti
mortem in nature and were caused by blunt impact and that the approximate time since
death of the deceased was about 6 to 12 hours. PW.10 proved Exhibit-5, the Post Mortem
Report of the deceased Abdul Monaf, as well as the Exhibit-3 Inquest Reportof the said
deceased and also identified his signatures on both the Exhibits - 3 &5.
Page No.# 19/29
During his cross examination by the defence said PW.10 stated that laceration may be caused
by dashing against hard substance.
39) PW.11, Abdul Basit, Sub-Inspector of Police, the then in-charge of Kalain Police Patrol
Post and the investigating officer of the case deposed before the Trial Court that on
11.09.2008 around 09.55 am Khairul Islam Laskar verbally informed that one Abdul Monaf
assaulted his brother Fakrul Islam Lasker and caused grievous injury on his person and on
getting the said information he on 11.09.2008 itself made Kalian GD Entry No. 212. He
deposed that after making that GD Entry, he went to Kalain Hospital where he found Abdul
Monaf and on being enquired, doctor of Kalain Hospital declared said Abdul Monaf as dead.
In said Kalain Hospital PW.11 also found the accused persons Fakrul Islam Laskar and Faizul
Islam Laksar with grievous injuries on their person and the doctor of said Hospital referred
them to SMCH, Silchar. He further deposed that on reaching Kalain Hospital, he also found
another injured person, Md. Rustom Ali, son of the deceased Abdul Monaf and recorded his
statement therein and thereafter he made inquest on the dead body of said Abdul Monaf in
presence of witnesses, prepared the Inquest Report, Exhibit-3 and then sent the dead body
of deceased Abdul Monaf to SMCH, Silchar for its Post Mortem examination. He also
forwarded the injured victim Rustom Ali to SMCH, Silchar along with an attendant for his
treatment. Thereafter, he visited the place of occurrence, drawn its sketch map, recorded the
statements of the witnesses in and around the place of occurrence, seized lathi and some
broken branches of tree Material Exhibit-1, seized one jhata Material Exhibit-2, seized one
hammer Material Exhibit-3 and some broken bamboo pieces Material Exhibit-5 preparing
Seizure List Exhibit-2. He also seized on wet Lungi Material Exhibit-4, preparing Seizure List
Exhibit-9. PW.11 identified his signatures on the Inquest Report Exhibit-3of the deceased
Abdul Monaf as well as the Seizure List Exhibit-2 containing Material Exhibits- 1 to 5. He
deposed that on 12.09.2008 around 07.30 p.m. Md. EnamUddin, PW.1 lodged a written
ejahar, Exhibit-1 about the incident and it wasidentified by him. He stated that on formal
receipt of said ejahar Exhibit-1, he forwarded it to the Officer-in-Charge of Katigorah Police
Station wherein it was registered as Katigorah Police Station Case No. 491/2008. PW.11
deposed that the Officer-in-Charge of Katigorah Police Station entrusted the said Katigorah PS
Case No. 491/2008 to him for its investigation and accordingly he on 16.09.2008 visited the
SMCH, Silchar, issued requisition to its Superintendent to keep the injured Fakrul Islam Laskar
Page No.# 20/29
in a room under police guard and to make arrangement for recording of his statement. He
stated that both the accused persons Faizul Islam Laskar and Khairul Islam were arrested by
him on 23.09.2008 and they were forwarded to custody up to 16.10.2008. PW.11 stated that
the accused persons of the case were arrested by him and that the accused Fakrul Islam
Laskar was arrested after his release from SMCH, Silchar. He deposed that after collecting
the Post Mortem Report of the deceased Abdul Monaf and during investigation of the case, he
was transferred from Kalain Patrol Post and consequently, he handed over the case diary to
the Officer-in-Charge of Katigorah Police Station, who in turn handed over the same to the
Sub-Inspector, Rupjoyoti Dutta who submitted the Charge Sheet in the case. Before filing the
ejahar of the caseon 12.09.2008, i.e., Exhibit-1 by PW.1 Md. Enam Uddin, said PW.11 stated
that he made a GD Entry Kalain PP Entry No.212 dated 11.09.2008 and that Exhibit-8 was the
extract of the said GD Entry. He went on deposing that during his investigation, he seized a
half wet brown colour cotton lungi having red colour stain on it from the courtyard of Khairul
Islam, preparing seizure list Exhibit-9 and proved his signature on it, where Exhibit-4 was the
said lungi.
40) The accused Fakrul Islam, Khairul Islam, Faizul Islam, Sairul Islam, Didural Islam @
Didul and Abdul Sahid cross examined said PW.11 wherein he stated that Fakrul Islam,
Khairul Islam, Faizul Islam, Sairul, Dedul @ Didural Islam, Abdul Sahid were witnesses in
Sessions Case No. 273/2010. PW.11 stated that the statements of Rustom Ali, Samiluddin,
Badal Das, Jahanara Begum, Rina Begum and Makaddas Ali were recorded on 11.09.2008,
the statement of Enam Uddin was recorded on 12.09.2008 and the statements of Raina
Begum and Jalal Uddin were recorded on 16.09.2008. PW.11 also stated that the stain
mentioned in the seizure list, was not ascertained as to whether it was human blood or it was
of bird or animal. He denied the suggestion that Exhibit-2 seizure list was prepared in
collusion with the informant side and also denied the suggestion that the seized articles
mentioned in Exhibit-2 were placed by the informant side for the purpose of the case and
that the name of the scribe of the ejahar of the case was not mentioned in it.
41) During his cross said PW.11 stated that in Exhibit-3, Inquest Report of the deceased
Abdul Monaf, it was written that on query came to know that in the morning on 11.09.2009
the occurrence took place in the paddy field and on road.PW.11 in his cross examination also
Page No.# 21/29
stated that on 11.09.2008 itself around 07:40 am, the Officer-in-Charge received the FIR
from Musst. Nehara Begum Laskar which was registered as Katigorah PS Case No. 344/2008
and that Exhibit-B was the FIR of that case, Exhibit-C was the medical reports of said Fakrul
Islam and Faizul Islam, son's of Abdul Sahid and Exhibit-D was the Charge Sheet No.
273/2010 submitted in said Katigorah PS Case No. 344/2008.
42) Said PW.11 in his cross examination also stated that PW.1 Enam Uddin did not state
before him that he wanted to tell something to police and that police did not allow him to say
something more. He stated that PW.2 Rustom Ali did not state before him that he was having
a tailor shop in front of the house of his brother Farizuddin and he neither stated before him
that on the date of occurrence he went to the house of Farizuddin to bring the key of his said
shop nor stated that as soon as he stepped on the varanda of the house of Farizuddin, the
accused persons suddenly appeared and attacked him. He stated that said PW.2 Rustom Ali
did not specify that he was assaulted by the accused on his left little finger and left leg and
that accused Khairul had given him bollom blow on the left side of his chest and that other
three places on his person. PW.11stated that said PW.2 also did not state before him that he
was assaulted by the accused with dagger, jhata, dao, roller etc. However PW.11 clarified that
said PW.2 Rustom Ali stated before him that his father was assaulted by bollom, lathietc. and
that the occurrence took place on 09.09.2008.
43) With regard to the evidence of PW.3, Jahanara Begum, said PW.11 in his cross
examination stated that she did not state before him that at the relevant time she was
sweeping the courtyard and her brother-in-law Rustom (PW.2) came to their house to take
the key and also did not state before him that while he was at the varanda of their house, the
accused persons assaulted her said brother-in-law. PW.11 stated that said PW.3 did not state
before him that the accused persons withjhata and dagger assaulted her father-in-law Abdul
Monaf and brother-in-law Rustom Ali and that she did not state before him that hearing her
hue and cry, her brother-in-law and sister-in-law came to the place of occurrence. PW.11
stated that PW.3 did not state before him that Fakrul assaulted on the head of his father-in-
law Abdul Monaf by a jhata and Khariul assaulted him by jhata and ballam and further stated
that PW.3 did not state before him that Didul, Abdul Sahid and Khariul assaulted her father-
in-law by dagger.
Page No.# 22/29
44) PW.11 also stated that PW.4, Samil Uddin did not state before him that the accused
persons assaulted them with jhata and hammer and that his sister Rina Begum (PW.5) took
the injured persons to SMCH and that the said PW.4 in his statement did not mention the
names of his sisters in any manner.
45) Regarding the evidence of PW.5, Rina Begum, said PW.11 in his cross examination
stated that the said witness did not state before him that she tried to resist the accused
persons, to which they did not pay any heed to her request and that said PW.5 also did not
state to him that her brother was referred to SMCH, Silchar by Kalain CHC.
46) Regarding PW.6 Raina Begum said PW.11 stated that she did not state before him
that the accused persons armed with ballam and hammer and also did not mention the name
of the accused Abdul Sayed nor did she state to him that her father-in-law and brother-in-law
were taken to the Hospital where her father declared dead and her brother were referred to
SMCH.
47) PW.11 in his cross examination also stated that the PW.7 Jalaluddin Hazari did not
state before him that in the house of Monaf, he saw the accused Fakrul Islam, Khairul Islam,
Faizul Islam, Sairul, DedulLis @ Didural Islam, Abdul Sayed assaulting Monaf Ali and his son
and that those accused persons and their father were armed with lathi and jhata and that all
the accused persons left the place occurrence finding said Monaf dead. PW.11 during his
cross examination further stated that the witnesses during their statements before him did
not name the accused persons.
The accused, Numar Ali and other did not cross examine the said PW.11.
48) On his re-examination by the prosecution, said PW.11, the Investigating Officer of the
case stated that Rustom Ali, PW.2 was examined on 11.09.2008 and in his statement said
Rustom Ali stated that the occurrence took place on that day. Further cross-examination of
said PW.11 was declined by the defence.
49) From the perusal of the record of the case it is seen that in the Trial Court PW.11, the
Investigating Officer was first examined by the prosecution on 04.04.2014. He was further
examined by the prosecution before the Trial Court on 22.05.2014. But as on those two
Page No.# 23/29
dates said PW.11 was not cross examined by the defence, his cross examination was
reserved. The defence for the accused persons Fakrul Islam, Khairul Islam, Faizul Islam,
Sairul Islam, Didural Islam @ Didul and Abdul Sahid cross examined said PW.11 only on
10.11.2014 and on the same day he was re-examined by the prosecution.
50) All the accused persons in their statement recorded under section 313 CrPC stated
that they were innocent and the accused Fakrul Islam Laskar during his such statement
stated that on 11.09.2008 in the morning while he was going to his newly constructed house,
when he reached near the house of Abdul Monaf, said Monaf along with accused
Rustomuddin, Samiluddin, Fazaluddin, Sabser Ali and Makdus Ali attacked him with dao,
lathietc and caused grievous injury on his person and at that time his brother Faizul Islam
Laskar, his wife and his sister who were passing by, saw the occurrence and then they tried to
interfere and that he and said Faizul Islam Laskar were assaulted by those accused persons
and the accused Rustom Uddin dealt dao blow on his neck, accused Samil Ahmed dealt a
hammer blow on his hand and accused Farijuddin assaulted him with lathi and that for such
assault on him, a case was filed and in retaliation to the same, those accused persons
fabricated a false case against them.
51) It is already observed above that Mr. Paul, learned counsel for the informant PW.1 has
brought to the notice of the Court that the relevant Sessions Case No. 273/2010 against the
informant and his brothers arising out Katigorah PS Case No. 344/2008 on the basis of an FIR
lodged by the wife of an accused herein with regard to the same incident, involved in the
present case, has already been dismissed by the learned Additional Sessions Judge (FTC),
Cachar, Silchar by the Judgment dated 31.08.2015.
52) We have considered the judgments cited by Mr. Mahajan, learned counsel for the
appellants.
53) It is seen that PW.9 Dr. Badal Das, the in-charge of Kalain CHC on 11.09.2008, on
the request of police, at 09:30 am examined Rustom Ali (PW.2) and accordingly, issued the
injury report Exhibit-4 pertaining to said victim Rustom Ali. Thereafter,the said victim was
referred to Silchar Medical College & Hospital, Silchar. It is also seen from his evidence-in-
chief as well as his cross examination by the defence that said PW.9 did not state that victim
Page No.# 24/29
Rustom Ali (PW.2) sustained the injuries following RTA. Further, Exhibit-4, Injury Report of
said Rustom Ali that was issued by PW.9 nowherestates that the said victim sustained injuries
following RTA, except that that the injuries were simple caused by blunt object.
54) From the Exhibits - 6 and 7, Bed Head Ticket (Record of Admission of Silchar Medical
College and Hospital dated 11.09.2008) and Injury Register of said Hospitalpertaining to the
victim Rustom Ali (PW.2) respectively, it is seen that those exhibits does not contain any
finding of RTA with regard to the injuries of the said victim. Moreover, from the records we
have noticed that no such documents as Exhibit-A and/or Exhibit-A(1) were exhibited by the
prosecution in the case in hand, though PW.8, Dr. Anil Kumar Sinha, doctor of SMCH, Silchar
in his cross examination by the defence mentioned about such ExhibitA/Exhibit-A(1) stating
that the same reflects injuries of victim Rustom Ali were followed by RTA. However, the said
PW.8 in his cross examination by the defence clarified that in the Exhibit-7 there is no
reference of any case. We have also seen from the Exhibits- 6 & 7 that the injuries sustained
by the victim Rustom Ali (PW.2) due to alleged physical assault at 07:00 am at Kalain and
that he was escorted to SMCH, Silchar by constable and home guard as forwarded by PW.11.
55) From the evidence of PW.11, the Investigating Officer of the case it is seen that on
the date of the incident when he visited Kalain Hospital he found Abdul Monaf in it and in the
said Health Centre itself its doctor declared him dead. PW.11 also found Fakrul Islam Laskar
and Fijul Islam Laskar with grievous injuries in the Kalain Hospital. Said PW.11 also found
another injured in the Kalain Hospital, namely, Rustom Ali (PW.2), son of deceased Abdul
Monaf and said PW.11, Investigating Officer of the case examined said Rustom Ali and sent
him to SMCH for treatment. From the evidence of PW.11 as well as other PWs it is reflected
that said PW.11 conducted the inquest of the deceased Abdul Monaf at Kalain CHC itself in
presence of witnesses and he prepared the Inquest Report Exhibit-3 of the said deceased,
where PW.4 Md. Samil Uddin, son of the deceased Abdul Monaf and PW.9, Dr. Badal Das,
doctor of Kalain CHC were the signatories. Moreover, the PW.10, Dr. Gunajit Das, the
concerned autopsy doctor of SMCH, Silchar also signed the said Exhibit-3 and all of them,
including the PW.11 identified their signatures in the said Exhibit-3.
56) Further, PW.11, Investigating Officer of the case during his cross examination stated
Page No.# 25/29
that PW.2, Rustom Ali did not state before him that the accused assaulted his father by
dagger, jhata, dao, roller. However, the said PW.11 in his cross examination by the defence
categorically stated that Rustom AliPW.2, told him that his father was assaulted by ballam,
lathi, etc. Moreover, from said Exhibit-3, Inquest Report of the deceased Abdul Monaf it can
be seen that PW.11 during inquest of the said deceased found grievous cut injury on the head
of the deceased and a simple cut injury on his left elbow. In the said Inquest Report Exhibit-
3, PW.11 also observed that he learnt that the accused persons attacked the deceased (Abdul
Monaf) on the road near the cultivable land and caused grievous injuries to him with sharp
weapons as a result of which he was taken to Kalain CHC, where he succumbed to injuries
and to ascertain the exact cause of death, he sent the dead body said deceased to Silchar
Medical College for autopsy.
57) These evidence adduced by the prosecution remained intact and the defence by cross
examining the prosecution witnesses could not unsettle it. As such the involvement of the
accused appellants in assaulting the deceased and the victim have been proved by the
prosecution through the evidence of PW.2 Rustom Ali, the injured victim.
58) Prosecution witness Nos. 1 to 6 are related to each other. They are sons, daughters,
daughter-in-law and son-in-laws of deceased Abdul Monaf. From the evidence of PW.1 Md.
Enam Uddin, we have noticed that there was a land dispute between the accused appellants
and the side of the informants and that the said land was adjacent to the homestead
ofdeceased Abdul Monaf and PW.1 at Sundaura and that the accused personsdispossessed
informant side from their said land prior to the incident, where the informant side had opened
a shop over it. It is also in evidence that prior to the alleged occurrence, the deceased Abdul
Monaf (during his life time) and his sons - Rustam Ali (PW.2) and Foriz Uddin were made
accused in a case of dacoity in the house of the accused appellant Fakrul Islam Laskar.
59) Prosecution witnesses No. 1 to 7 could not prove who amongst the accused
appellants assaulted and/or gave lathi blow on the head of Abdul Monaf pursuant to which he
sustained grievous injury and died in the Kalain CHC. Prosecution witnesses No. 1 to 7 also
failed to prove who amongst the accused appellants assaulted PW.2 Rustom Ali, the injured
victim. But from the evidences of the other prosecution witnesses we have seen that in the
Page No.# 26/29
same incident on 11.09.2008 two of the accused appellants, namely, Fakrul Islam Laskar and
Faizul Islam Laksaralso sustained grievous injuries, who were brought to Kalain CHC and the
doctor of said Health Centre referred them to SMCH, Silchar. Said Faizul Islam Laksar was
arrested in the case on 23.09.2008 when he appeared before PW.11, the Investigating Officer
of the case and the other accused Fakrul Islam Laskar was arrested in the case on
16.10.2008 after his release from SMCH, Silchar.
60) From the perusal of the evidence it can be seen that in the early morning on the date
of the incident fight took place betweenthe accused appellants and the side of the informant
in which Abdul Monaf and Rustom Ali from the side of the informant and Fakrul Islam Laskar
and Faizul Islam Laksar from the side of the accused appellants sustained injuries on their
person and in that fight Abdul Monaf received lathi blow on his head and though the injured
persons were taken to Kalain CHC, said Abdul Monaf died in that Health Centre.
61) Section 148 IPC relates to "Rioting, armed with deadly weapon" and the essential
ingredients of the offence under Section 148 IPC are that -
(1) Assembly of five or more personswith deadly weapons;
(2) The assembly was unlawful;
(3) Use of force or violencewith deadly weapons;
(4) Accused was a member of such unlawful assembly and
(5) In prosecution of the common object such unlawful assembly used forcewith
deadly weapons.
Deadly weapons, in the context of Section 148 IPC, generally is a thing designed to
cause death of a person, e.g., agun, bomb, rifle, sword etc. From the evidence of PW.11,
Investigating Officer of the case we have seen that that the injured victim PW.2 Rustam Ali
stated before him that accused persons used lathi, ballam etc. Moreover, Injury Report of the
said injured victim PW.2 Roustam Ali, Exhibit-4 as well as the Postmortem report of the
deceased Abdul Monaf, Exhibit-5 reveal that injuries sustained by them were caused by blunt
object and blunt impact. As such prosecution failed to establish that accused persons
assembled in the place of occurrence with deadly weapons so as to attract Section 148 IPC.
62) Section 441 IPC relates to Criminal Trespass and a person said to commit criminal
trespass, who enters into or upon property in the possession of another with intent to commit
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an offence or to intimidate, insult or annoy any person in possession of such property, or
having lawfully entered into or upon such property, unlawfully remains there with intent
thereby to intimidate, insult or annoy any such person, or with intent to commit an offence.
63) Section 447 IPC relates to punishment for Criminal Trespass, which reads as -
Whoever commits criminal trespass shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine which may extend to five hundred
rupees, or with both. The essential ingredients of the offence under Section 447 IPCare that
-
(i) the complainant was in possession of the property,
(ii) the accused entered into or upon the property unlawfully or having entered into or upon such property unlawfully remains there with an intention to (a) commit an offence; (b) intermediate; (c) insult; (iv) annoy any person in possession of property.
From the evidence adduced by the prosecution, we have seen that the defence could not overthrow the evidence that the incident did not take place in the property of the informant side.
64) Section 323 IPC relates to punishment for voluntarily causing hurt. Section 321 IPC relates to voluntarily causing hurt which says that - Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". The essential ingredients of the offence under Section 323 IPC are that -
(i) the accused voluntarily caused bodily pain, hurt or infirmity to the victim and
(ii) the accused did so with the intention of causing hurt or with the knowledge that he could thereby cause hurt to the victim.
It is already noted above that prosecution led evidence that accused persons used ballam, lathi etc. in assaulting the injured victim and the deceased, that could not be dislodged by the defence, goes to show about the intention of the accused persons while assaulting the victim and the deceased.
65) We have already noticed about the existence of land dispute between the parties as well as the presence of enmity between them and all these led to a mutual conflict between Page No.# 28/29 the parties.From the perusal of the evidence on record, the exhibits etc.as discussed above we found that the offence was the outcome of quarrel and fight between both the parties, in which members of both the parties sustained injuries. We did not find any reliable and acceptable evidence as to how it started and as to who was the aggressor. Moreover, from the injury report of the victim Rustam Ali and the post mortem report of the deceased Abdul Monaf, it cannot be said that the accused persons acted cruelly and/or in unusual manner or took undue advantage. As such we are of the view that the case in hand falls under Exception 4 to Section 300 of the IPC. We have also seen from the evidence that since the date of incident on 11.09.2008 accused Fakrul Islam Laskar being grievously injured in the same fight between the parties was in SMCH till his release in middle of October 2008 and after his release from said hospital, he was arrested on 16.10.2008. There being evidence on record, as discussed aboveand also having regard to the nature of weapon used and the injury caused on the head, though vital part of the body of the deceased, we are of the belief thatin course of said fight, the victim was assaulted by the appellants causing injuries on his head. But we did not find any such evidence that there was any premeditation or any intention to cause death by the appellants as the incident occurred due to sudden fight between the parties.
66) Therefore, in our considered opinion, the accused-appellants could not have been convicted under Sections 302/149 I.P.C. for causing death of Abdul Monaf as we did not find any such intention to cause death of the said deceased. As such, we set aside the said conviction of the accused-appellants and modify their conviction under Section 304 Part-II I.P.C.
67) Since we have modified the conviction of the accused appellants, namely, Md. Abdul Sahid Laskar, Md. Fakrul Islam Laskar, Md. Faizul Islam Laskar, Md. Khairul Islam Laskar and Md. Didarul Islam Laskarfrom Section 302 I.P.C. to Section 304 Part II, I.P.C, we also reduce the sentence to rigorous imprisonment for 6 (six) years with regard to those accused appellants. We, however, do not interfere with the sentence under Sections 323/447 IPC, sentence of fine and the default sentence as awarded by the learned trial Court. The fine, so realized, from the appellants shall be paid to the widow of the deceased Abdul Monaf on her proper identification.
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68) Accordingly, we modify the impugned judgment of conviction dated 31.08.2015 and sentence dated 04.09.2015, passed by learned Additional Sessions Judge (FTC), Cachar, Silchar in Sessions Case No. 21/2010 to the extent above.
69) The period already spent by the appellants named above in custody, during investigation, trial and during pendency of this appeal shall be set off from the substantive sentence.
70) Accordingly, this criminal appeal is partly allowed by altering the conviction to the extent, noted above.
71) Registry shall return the LCR to the Court of learned Additional Sessions Judge (FTC), Cachar, Silchar with a copy of this judgment.
JUDGE JUDGE Comparing Assistant