Gauhati High Court
Crl.A./302/2019 on 18 February, 2025
Author: Suman Shyam
Bench: Suman Shyam
Page 1 of 40
GAHC010184922019
2025:GAU-AS:1707
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL
PRADESH)
CRL APPEAL NO.302 OF 2019
1. Hussain Ali,
S/o- Abdul Khaleque,
R/o- Balikuri, P.S. Kalgachia,
Dist.- Barpeta, Assam.
2.Hafizur Rahman @ Khandakar,
S/o- Abu Bakkar Khandakar,
R/o- Bankubhanga, P.S. Kalgachia,
Dist.- Barpeta, Assam.
3. Abdul Aziz,
S/o- Abdul Khaleque,
R/o- Balikuri, P.S. Kalgachia,
Dist.- Barpeta, Assam.
4. Hasen Ali,
S/o- Abdul Khaleque,
R/o- Balikuri, P.S. Kalgachia,
Dist.- Barpeta, ASSAM.
5. Habeluddin,
S/o- Abdul Khaleque,
CRL.APPEAL NO. 302 OF 2019 Page 1
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R/o- Balikuri, P.S. Kalgachia,
Dist.- Barpeta, Assam.
6. Rustom Ali,
S/o- Sukur Ali,
R/o- Balikuri, P.S. Kalgachia,
Dist.- Barpeta, Assam.
7. Abdur @ Abdul Rouf,
S/o- Sukur Ali,
R/o- Balikuri, P.S. Kalgachia,
Dist.- Barpeta, Assam.
8. Abdul Hoque @ Hai,
S/o- Abdul Salam,
R/o- Balikuri N.C., P.S. Kalgachia,
Dist.- Barpeta, Assam.
9. Anser Bhuyan,
S/o- Joynal Abedin Bhuyan,
R/o- Balikuri, P.S. Kalgachia,
Dist.- Barpeta, Assam.
10. Saiful Islam,
S/o- Motiar Molla,
R/o- Digjani, P.S. Kalgachia,
Dist.- Barpeta, Assam
........Appellants
-Versus-
1. The State of Assam
Represented by the Public Prosecutor, Assam
2. Matiur Rahman,
S/o- Late Abdul Kader,
CRL.APPEAL NO. 302 OF 2019 Page 2
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R/o- Balikuri NC, P.S. Baghbor,
Dist.- Barpeta, Assam, Pin- 781308
........Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA For the Appellants : Mr. B. K. Mahajan, Advocate For the Respondent : Ms. S. Jahan, Addl. P.P., Assam Date of Hearing : 17.12.2024 Date of Judgment : 18.02.2025 JUDGMENT & ORDER (CAV) (Mridul Kumar Kalita, J)
1. Heard Mr. B. K. Mahajan, learned counsel for the appellants. Also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam.
2. This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973, has been filed by ten appellants challenging the judgment and order dated 10.07.2019, CRL.APPEAL NO. 302 OF 2019 Page 3 Page 4 of 40 passed by the learned Additional Sessions Judge, Barpeta, in Sessions Case No. 25/2014. By the impugned judgment, all the appellants were convicted under Sections 147, 148, 341, and 302 read with Section 149 of the Indian Penal Code and sentenced as follows:
-Under Section 147 read with Section 149: Simple imprisonment for six months.
-Under Section 148 read with Section 149: Simple imprisonment for one year.
-Under Section 341 read with Section 149: Simple imprisonment for one month.
-Under Section 302 read with Section 149: Rigorous imprisonment for life and a fine of ₹ 500/- each, with a default sentence of an additional two months' simple imprisonment.
All the sentences were directed to run concurrently.
3. The facts relevant for adjudication of the instant appeal, in brief, are as follows: -
(i) That, on 10.01.2009, one Matiur Rahman lodged an FIR before the In-charge of Balikuri Police Patrolling Post, alleging, inter alia, that at about 7:30 PM on 08.01.2009, the accused persons named in the CRL.APPEAL NO. 302 OF 2019 Page 4 Page 5 of 40 FIR, armed with lathis and other weapons, waylaid his uncle, Hazrat Ali, in front of the house of accused No. 1, Abdul Aziz. They inflicted severe injuries on Hazrat Ali by assaulting him on the head with bamboo lathis.
The FIR further states that although the injured was immediately shifted to Barpeta Road Life Care Nursing Home, the doctor referred him to Barpeta Civil Hospital due to the grievous nature of his injuries. Later, at about 12:30 AM on 10.01.2009, while undergoing treatment at Barpeta Civil Hospital, Hazrat Ali succumbed to his injuries.
(ii) Upon receiving the aforesaid FIR, the In- charge of the Balikuri Police Patrolling Post made a GD Entry at about 10:00 AM and forwarded the FIR to the Officer-in-Charge of Baghbar Police Station. Based on the FIR, the Officer-in-Charge of Baghbar Police Station registered Baghbar P.S. Case No. 8/2009 under Sections 147/148/149/341/302 of the Indian Penal Code. The investigation of the case was entrusted to ASI Dwarika Mohan Deka.
(iii) During the course of the investigation, the Investigating Officer took usual steps in the investigation like getting the inquest of the dead body done, drawing up the sketch map of the place of occurrence, seizing the weapons used in assaulting CRL.APPEAL NO. 302 OF 2019 Page 5 Page 6 of 40 the deceased, recording the statement of witnesses and collecting the post-mortem examination report. Ultimately, after completion of the investigation, the Investigating Officer laid the Charge-Sheet against the appellants under Section 147/148/149/341/302 of the Indian Penal Code.
(iv) All the appellants faced the trial while remaining on bail. By order dated 04.03.2014, the Court of learned Additional Session Judge (FTC), Barpeta framed the charges under Sections 148/147/149/341/302 of the Indian Penal Code against the appellants. When the said charges were read over and explained to the appellants, they pleaded not guilty and claimed to be tried.
(v) During the course of the trial, the prosecution side examined as many as 12 witnesses to bring home the charges against the present appellants. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 during which they denied the truthfulness of the testimony of the prosecution witnesses and pleaded their innocence. However, they did not adduce any evidence in their defence. Ultimately, by the judgment and order impugned in this appeal, the Trial Court had convicted CRL.APPEAL NO. 302 OF 2019 Page 6 Page 7 of 40 and sentenced the appellants in the manner as already described in paragraph No. 2 hereinabove.
4. Before considering the rival submissions made by the learned counsel for both the sides, let us go through the evidence of the prosecution witnesses, which is available on record.
5. The PW-1, Matiar Rahman, who is the first informant in this case has deposed that the deceased Hazrat Ali is his uncle. He has deposed that the incident took place 5 years ago and on the date of incident, at about 7:00 PM to 8:00 PM, the son of Hazrat Ali, namely, Rahim, was talking to the daughter of one Arfan of the same village in front of his house. PW-1 has deposed that a village meeting was arranged to discuss the issue and it was decided in the village meeting (Mel) that Rahim would marry the daughter of Arfan. The PW-1 has further deposed that he was asked to call the Kazi and when he went to call the Kazi, he heard hue and cry near a banana garden and there he saw the accused persons armed with lathi and branches of tree in their hand and Hazrat was lying on the ground nearby. The PW-1 has also deposed that he saw injuries on the heads and eyes of Hazrat and he was bleeding profusely from the injuries. The PW-1 has further deposed that he sent the injured Hazrat to Kalgachia PHC from there he was referred to Barpeta Road CRL.APPEAL NO. 302 OF 2019 Page 7 Page 8 of 40 PHC. He has further deposed that as the injuries sustained by Hazrat were grievous, he was shifted to Barpeta Civil Hospital, where he died at about 2:00 AM on the following day. The PW-1 has deposed that he was present when inquest of the dead body was done. He has further deposed that thereafter he lodged FIR in the police station, which is exhibited as Exhibit-1. He has also deposed that when Hazrat was lying at the place of occurrence, Ali Akbar, Khalek, Joynal and Jagir were present there. He has also deposed that Aziz, Hussain, Hasen, Habel, Saiful Mullah, Hafizur Rustom, Anser, Luku etc. had committed the offence as they were having bamboo stick and branches of trees in their hands.
6. During cross-examination, the PW-1 has deposed that he did not see Hazrat being assaulted. He has deposed that the village meeting (Mel) was held regarding conversation between Rahim and Saina Khatoon, the daughter of Arfan. He has deposed that about 50-60 people gathered in the village meeting (Mel), which was presided over by one Dr. Karim. He has deposed that after going about 2 furlongs away from the Mel (meeting), he heard hue and cry. He has deposed that he lodged the FIR after 2 days of the occurrence. He has deposed that there is a banana orchard near the place of the occurrence. He has also deposed that at the time of the occurrence, there were bamboo groves near CRL.APPEAL NO. 302 OF 2019 Page 8 Page 9 of 40 the place of occurrence. He was given many suggestions by the defence side, which were all denied by him.
7. During his further cross-examination, the PW-1 has deposed that he saw Rahim was kept confined in the house of Arfan. He has deposed that in order to rescue Rahim, his father, brother and other relatives went there. He has also deposed that Khaleque, Motiur, Nurul Islam, Jakir Ali, Ali Akbor, Joynal, Kader Ali and Abdul Rahim went to the meeting, which was called to settle the matter between Saina (daughter of Arfan) and Rahim. He has also deposed that one Abdul Rahim, son of Abdul Khaleque had filed another case against the appellants alleging assault to Abdul Aziz and Hussain Ali. The said case has been registered as Sessions Case No. 372/2015.
8. The PW-2, Ali Akbar, has deposed that at about 7:00 to 7.30 PM on 08.01.2009, when he was at his home, he heard you and cry at the house of Arfan, situated about three bighas away from his house. Thereafter, he proceeded to the place of occurrence and saw the appellant and many other persons including Rahim, Abdul Khalek, Mohidul, Joynal Abedin there. He has deposed that he saw exchange of words between the accused persons and these persons. He has also deposed that in the Bichar (village meeting), it was decided that Rahim, son of deceased Hazrat, would marry Saina, daughter of Arfan. He has deposed that while coming CRL.APPEAL NO. 302 OF 2019 Page 9 Page 10 of 40 from the village meeting towards their house, the accused persons waylaid them in front of the house of Robi and Ajiz. At that time, Hazrat Ali was also with them. He has also deposed that the accused persons assaulted them and he sustained injuries on his head and back as he was assaulted with a bamboo lathi and branches of Kendukona tree. PW-2 has deposed that Ajiz, Hussain, Hasen, Habel, Hafizur, Anser Ali, Abdul Rouf, Saiful Mullah, Rustom Ali and others assaulted Hazrat with the branches of Kendukona tree and bamboo lathi as a result of which Hazrat sustained injuries on his head and his ribs got broken and one eye also bulged out. He has also deposed that accused Ajiz, Anser, Hafizur declared Hazrat dead and thereafter they took away Hazrat's son Rahim with other persons. The PW-2 has further deposed that thereafter they took the injured Hazrat to his home and from there to Kalgachia Hospital. He has also deposed that from Kalgachia Hospital the injured was referred to Barpeta Road Life Care Nursing Home and on the next day he was shifted to Barpeta Civil Hospital where he died at the hospital at about 12:30 PM. He has also deposed that post-mortem examination of Hazrat Ali was done at Barpeta Civil Hospital.
9. During cross-examination, the PW-2 has deposed that Rahim is the son of his uncle and is his cousin. He has deposed that all the accused persons had bamboo lathi and branches of Kendukona tree in their hands. However, when CRL.APPEAL NO. 302 OF 2019 Page 10 Page 11 of 40 the accused persons were present in the Mel (village meeting) there was no bamboo lathi or branches of Kendukona tree in their hands. He has also deposed that the accused persons assaulted Khalek, Mohidul, Rahim, Hazrat, Jaynal and him. He has also deposed that the accused Aziz and Hussain assaulted him and accused Hasil and Hasen assaulted Khalek and accused Hasen and Hussain assaulted Mofidul. He did not see who assaulted Joynal. He has also deposed that accused Aziz, Hussain, Hasen, Habel, Hafizur, Anser, Saiful Mullah, Abdul Rouf and Rustam Ali assaulted Hazrat. He has deposed that after Hazrat fell down all the accused persons assaulted him indiscriminately and the PW-2 prevented them from assaulting Hazrat. He has also deposed that other villagers present there also offered resistance to the accused persons. He had also deposed that Rahim, son of Abdul Khalek had filed a case against them alleging assault which was registered as Sessions Case No. 372/2015. The PW-2 was given many suggestions by the defence side which were all denied by him.
10. The PW-3, Abdul Khalek, has deposed that the deceased Hazrat Ali was his cousin (son of his uncle). He has also deposed that the incident took place on 08.01.2009 at about 7:00 to 7:30 P.M. On that day a Mel (village meeting) was held in the front courtyard of the house of Arfan regarding his daughter Saina Khatun. He has deposed that in CRL.APPEAL NO. 302 OF 2019 Page 11 Page 12 of 40 the meeting it was discussed that as there was a love affair between Rahim and Saina, they should get married to each other. He has further deposed that ultimately, it was decided that the accusation made against Rahim was false. The PW-3 has deposed that Hazrat did not give consent for the marriage and, therefore, Saina's uncle Anser Ali got angry in the Mel and thereafter Hazrat left the Bichar (meeting). He has further deposed that thereafter when Hazrat reached in front of the house of Azizur, accused Anser Ali ordered the other accused persons, namely, Aziz, Hasen, Hussain, Habil, Rustom Ali, Abdul Rouf, Saiful Mulla to assault Hazrat and then the accused persons assaulted Hazrat with the branch of Kendukona tree and bamboo lathi in front of the house of Azizur. As a result of the assault, Hazrat suffered fracture injury on his head, his right eye bulged out and his ribs and nape got broken. The PW-3 has deposed that as at that time he was also there along with Hazrat, he offered resistance to the accused persons. They assaulted him as well as Rahim, Jubeda, Jaynal and Mohidul. He has deposed that after that the injured was taken to Kalgachia by a vehicle and from there he was again taken to Barpeta road Life Care Nursing Home and at about 10:00 AM on the following day he was taken to Barpeta Civil Hospital where he died at about 12:30 PM. The PW-3 has further deposed that the police visited the place of occurrence and had seized lathis and branches of CRL.APPEAL NO. 302 OF 2019 Page 12 Page 13 of 40 Kendukona tree from the place of occurrence. He has also deposed that though he sustained minor injury, he did not go for medical treatment as he was busy with Hazrat.
11. During cross-examination, the PW-3 has deposed that Hazrat refused to accept the decision of the village meeting regarding the marriage of Rahim and Saina and left the meeting. PW-3 has also deposed that he also left the meeting along with Hazrat. He has further deposed that when they reached in front of house of Azizur, accused Anser Bhuyan asked other accused persons to assault Hazrat and get the marriage solemnized on road. He has also deposed that when the accused persons were present in the meeting (Mel), there was no lathi in their hand. He was also asked several suggestive questions by the defence side which were all answered in the negative by him. During his further cross- examination, he has deposed that at the time of incident he was present at the spot.
12. The PW-4, Mohidul Islam, has deposed that the deceased Hazrat Ali was his father. He deposed that the incident took place at about 7:00 to 7:30 PM on 08.01.2009. He has deposed that on that day following the orders of accused Anser Bhuyan, the other accused persons took his brother Abdur Rahim from the road to the house of Arfan with an intention to get him married to the daughter of Arfan. He has further deposed that after getting to know about the CRL.APPEAL NO. 302 OF 2019 Page 13 Page 14 of 40 aforesaid fact, Hazrat went to the house of Arfan and asked the accused persons as to why they have detained Rahim and he was told that Abdur Rahim had a love affair with Saina and, therefore, they should marry. The PW-4 has further deposed that when his father asked Rahim, he refused to marry Saina. Saina also told him that there was no love affair between her and Rahim. After coming to know about this, his father asked the accused persons as to why they were forcing Rahim and Saina to get married and when he tried to come back, accused Anser exhorted other accused persons to assault his father. The PW-4 has further deposed that when his father reached in front of the house of accused Aziz, the accused Anser hit him on his neck with a bamboo lathi and when he fell down to the ground, the rest of the accused persons assaulted him with branches of Kendukona tree. The PW-4 has further deposed that as he was along with his father, he tried to resist the accused persons but the accused persons assaulted him also. The PW-4 has also deposed that his brother Abdul Rahim, Joynal, Abdul Khaleq, Noor Islam, Ali Akbar also reached that place and offered resistance to the accused persons but they did not pay any heed. He has further deposed that due to assault, his father sustained injuries on his entire body including head. Thereafter, he was taken to hospital and after a day at about 12:00 AM, at night, his father died in the hospital.
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13. During cross-examination, the PW-4 has deposed that Saina was forcefully married to Abdur Rahim on the next day of the incident. He has also deposed that the place of occurrence is a road and there was no tree over there. He has also deposed that it was Thursday on the date of incident and it was a moonlit night that day. He denied a suggestion that he had stated before the Magistrate that the incident took place at about 9:00 PM, when Abdul Khalek, Ali Akbar, Rahim and his father Hazrat Ali and he were coming back to the house after offering Namaz in the Mosque. There were several suggestions from the defence side which were all denied by him.
14. The PW-5, Joynal Abedin, has deposed that on the day of occurrence, a village meeting was held with regard to the matter of Rahim and Saina and in the said Bichar (meeting) when the people of girls side told Rahim to marry Saina, the people from Rahim side left the said meeting and when they reach in front the house of the Abdul Aziz, the accused persons, namely, Azizur, Hasen, Habel, Hussain, Abdul Rouf, Rustom, Abdul Haque, Anser, Hafizur, Saiful Mullah etc. confronted Hazrat and started assaulting him with branches of Kendukona tree and bamboo lathi as a result of which, the bone in the neck of Hazrat was broken. Hazrat Ali's eyes were also plucked out and he sustained injury on his entire body.
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15. The PW-5, has further deposed that though he was with Hazrat at that time, however, as there was no lathi and weapon in his hand, he was helpless. The PW-5 has also deposed that Matiar, Jakir, Kader, Rahim, Mohidul were also with him. He has further deposed that thereafter they took Hazrat to his home in injured condition and from there he was taken to Kalgachia hospital and from there he was shifted to Barpeta Hospital where he died on the following day.
16. During cross-examination, the PW-5 has deposed that he was also present in the Mel (meeting) till the end. He has also deposed that after refusing to accept the decision of the village meeting (Mel), all people from Rahim side left the said Mel. He has further deposed that Saiful Bhuyan and Jaynal went to bring the Kaji but they did not return back. He has also deposed that the Kaji solemnized the marriage between Rahim and Saina but he had left before that. He has also deposed that about 50 to 60 persons gathered at the place of occurrence but only the ten accused persons assaulted Hazrat and rest were watching them. He has also deposed that he was also assaulted and a couple of blows were dealt to him with a lathi. He has also deposed that he does not remember as to who assaulted him. He also deposed that when there were exchange of words in the meeting (Mel), the people got divided into two groups. He has also denied CRL.APPEAL NO. 302 OF 2019 Page 16 Page 17 of 40 several suggestions put to him by the defence side. He has also deposed that the accused persons also filed a cross case against them alleging assault on Abdul Aziz and Hussain.
17. The PW-6, Ms. Jabeda Parbin, has deposed that the deceased Hazrat Ali was her father and the incident took place on 08.01.2009. She has deposed that at about 7:30 PM on that day she heard hue and cry near the house of the Azizur Rahman and when she rushed there, she saw the accused persons assaulting her father with branches of Kendukona tree and lathi on the road in front of the house of the Azizur. When she tried to resist them, the accused persons intended to assault her also. She has deposed that Motiar, Mohibul, Joynal and Nurul Islam also tried to prevent the accused persons. She has further deposed that after assaulting her father, Anser said that her father had died and thereafter they left the place. She has also deposed that she saw grievous injury on the head and different parts of the body of her father. She has also deposed that her father was shifted to Life Care Nursing Home and from there to the Barpeta Civil Hospital. On 10.01.2009, her father died at about 12:30 PM while undergoing treatment.
18. During her cross-examination, the PW-6 has deposed that she did not see Rahim at the place of occurrence. She has also deposed that Mohidul, Nurul, Motiar and Jaynal came after sometime. She has denied the suggestion that CRL.APPEAL NO. 302 OF 2019 Page 17 Page 18 of 40 she did not state before the police that the accused persons had assaulted her father. She was given many other suggestions by the defence side which were all denied by her.
19. The PW-7, Nurul Islam, has deposed that on 08.01.2009 at about 7:30 PM, Rahim and Saina were talking to each other on the road and regarding that matter, a village meeting was called. He has deposed that in the village meeting, Saina denied of having any incident between her and Rahim. The PW-7 has deposed that after the village meeting (Bichar), while he along with Hazrat (deceased) reached near the house of Azizur, the appellants, namely, Azizur, Hafez, Abdul Haque, Rustom, Anser, Hafizul, Saiful Mullah, Rafuk Mian @ Abdul Rup waylaid Hazrat and assaulted him with branches of tree and bamboo, due to which Hazrat sustained injuries on his head, eyes and other parts of the body. The PW-7 has also deposed that they offered resistance to the assault but since they were armless and were threatened by the accused persons, they kept away from them. Later on, Hazrat was taken to hospital.
20. During his cross-examination, the PW-7 has deposed that the village meeting (Bichar) lasted for about two hours and he left the meeting while it was going on. He has also deposed that Rahim was kept detained in the meeting. He has also deposed that he is not aware of as to what decision CRL.APPEAL NO. 302 OF 2019 Page 18 Page 19 of 40 has been taken in the meeting. The PW-7 has also deposed that he was made an accused in the case which was filed by Abdul Rahim, wherein allegation of assault on Hussain Ali and Abdul Aziz was made. He has also deposed that he was not present in the place of occurrence at the time of the incident.
21. The PW-8, Rahim Ali, has deposed that on 08.01.2009 at about 5:30 PM, he was talking to Saina near his house and at that time Hussain and Aziz came there and enquired about what they were talking, when he replied that that he was just having chit-chat with Saina, other people also came there and raised commotion. The PW-8 has further deposed that thereafter a meeting was held where his father Hazrat Ali, Akbar Khalek, Jaynal, Motiar and Nurul came. He has deposed that when in the said meeting Saina was questioned, she said that it was just a simple chit-chat over household matter. He has further deposed that in the meanwhile other people left the village meeting and that time accused persons assaulted Hazrat with branches of tree and bamboo lathi on the road near the house of the Azizur. He has deposed that Hazrat sustained injury on his head, eyes and other parts of body and his eyes got damaged. He has also deposed that when he tried to prevent the accused persons, they assaulted him also. He has further deposed that due to hue and cry, nearby people assembled there. He has deposed that Abdul Aziz, Anser, Hussain Ali, Hasen, CRL.APPEAL NO. 302 OF 2019 Page 19 Page 20 of 40 Abiruddin, Abdul Haque, Abdul Rup, Rustom, Saiful and Hamidul had assaulted Hazrat. He has further deposed that thereafter Aziz, Anser and Hussain Ali got him and took him to the house of Arfan.
22. During cross-examination, the PW-8 has deposed that at the following day of the incident, marriage between him and Saina was solemnized at the house of Arfan and, thereafter, he had started conjugal life with Saina. He was also given many suggestions by the defence side which were all denied by him.
23. The PW-9, Dr. Dijesh Ch. Sarma, who had performed the post-mortem examination of the dead body of deceased Hazarat Ali, has deposed that on 10.01.2009, he was working as Sub Division Medical and Health Officer at Barpeta Civil Hospital and on that day, he performed the post-mortem examination of the dead body of the Hazarat Ali in connection with Balikuri Out Post with GDE No. 132 dated 10.01.2009. He has deposed that during the post-mortem examination, he has found the following:
"On external appearance - A male body not decomposed, rigor mortis present, body look pale, blood stains seen over his clothes, no fecal or seminal discharge is seen. Swelling present over right parietal region along with right cheek. Eye ball looks CRL.APPEAL NO. 302 OF 2019 Page 20 Page 21 of 40 black. multiple abrasions noted over cheek and both legs.
cranium and spinal canal - scalp- externally scalp look healthy. Large amount of blood clots seen below the scalp Both frontal and parietal bone on right side are fractured Membranes - lacerated on right side. Large amount of blood clot seen over the brain. Lacerated brain.
No other injuries seen. The injuries mentioned above are ante-mortem in nature with ante-mortem blood clots seen in and around the injured tissues.
The PW-9 has opined that the death was due to shock and hemorrhage following head injury caused by blunt object. Time since death was about 18 hours. He exhibited the post-mortem report as Exhibit-6.
24. During cross-examination, he has deposed that the injury found by him may be caused due to the falling of hard substance on force. He has also deposed that the police station case number has not been mentioned in the post- mortem examination report. He has also deposed that he CRL.APPEAL NO. 302 OF 2019 Page 21 Page 22 of 40 cannot say specifically as to when the deceased died. He has also deposed that the deceased was not admitted in Civil Hospital, Barpeta. He has also deposed that even if proper treatment would have been provided to the deceased, he would not have survived for long time, but for few hours.
25. The PW-10, Smt. Renu Bora Handique, has deposed that on 05.09.2009, she was working as Jr. Scientific Officer, Serology Division of Forensic Science Laboratory, Kahilipara and on that day, she received a parcel in a sealed cloth cover box containing of three exhibits from the Superintendent of Police, Barpeta in connection with Baghbar P.S. No. 58/2009. On examination, she found the following:
"Descriptions of exhibits - one sealed cloth cover wooden box contains the following:
1. One no. of branch of tree having stain of suspected size 86 cm height blood, seizure list no. 1. My no. Sero- 2515/A.
2. One no. of branch of tree having stains of suspected blood, size 145 cm length seizure list no. 1 my no. Sero- 2515/B
3. One no. branch of tree having stains of suspected blood total length 135 cm (app) seize list no. 1 my no. Scro-
2515/C Result of examination-
CRL.APPEAL NO. 302 OF 2019 Page 22
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1. Ex. 1 Sero-2515/A, Sero-2515/B
and Sero-2515/C gave negative test
for blood.
Ex. 7 my report. Ex. 7(1) my
signature.
26. Her cross-examination was declined.
27. The PW-11, Shri Darika Mohan Deka, who is the Investigating Officer of the case, has deposed that on 10.01.2009 when he was on duty at Balikuri Out Post, one Motiar Rahman lodged an ejahar at about 10.00 AM. Accordingly, a GDE No. 132 was made. He forwarded the said ejahar to the Officer-in-Charge Baghbor Police Station for registration and started investigation and thereafter, visited the Barpeta Civil Hospital where he found the dead body of the deceased. He has further deposed that he conducted the inquest and he exhibited inquest report as Exhibit - 2.
28. The PW-11 has further deposed that thereafter, they visited the place of occurrence and seized a thorny and blood-stained branch of tree and prepared one seizure list, which is exhibited as Exhibit-3. He has also deposed that he drew the sketch map of the place of occurrence and recorded the statement of witnesses. He has also deposed that again on 31.03.2009 the son of the deceased lodged an ejahar through the Superintendent of Police, which was enclosed in CRL.APPEAL NO. 302 OF 2019 Page 23 Page 24 of 40 the case diary. He has also deposed that he arrested the accused and send the witnesses namely, Abdul Khalek and Mahidul for recording their statement under Section 164 of the Code of Criminal Procedure, 1973. Thereafter, he collected the post-mortem examination report and forensic laboratory report and subsequently, S.I. Nurul Islam submitted the charge-sheet, which is exhibited as Exhibit-9.
29. During cross-examination, the PW-11, has deposed that the incident took place on 08.01.2009 and the FIR was received on 10.01.2009, however, cause of delay in lodging the FIR was not mentioned in the FIR. He has further deposed that on 31.03.2009 Rahim Ali had again lodged an ejahar wherein 14 persons named as accused. He has also deposed that witness Mohidul Islam did not state before him that when his father Hazrat disagreed for marriage Anser asked other accused persons, Anser assaulted his father on neck. He has also stated that there are two FIRs in the case, however, he does not know as to on the basis of which FIR the charge-sheet has been lodged.
30. The PW-12, Nurul Islam, has deposed that in the year 2009, he was serving at Borbhag Police Station and on the transfer of the earlier Investigating Officer, he received the case diary and after finding sufficient materials he had laid the charge-sheet against the accused persons, namely, CRL.APPEAL NO. 302 OF 2019 Page 24 Page 25 of 40 Hussain Ali, Hafijur Rahman, Abdul Ali, Hasen Ali, Habeluddin, Rustam Ali, Abdul Rauf, Abdul Hai and Anser Bhuyan under Sections 147/148/149/341/302 of the IPC.
31. During cross examination, he has deposed that he laid the charge-sheet on the basis of FIR dated 10.01.2009. He also deposed that he did not receive any FIR on 16.03.2009.
32. All the appellants were examined under Section 313 of Code of Criminal Procedure, 1973 during which they pleaded their innocence and denied the truthfulness of the testimony of the prosecution witnesses. Though, during their examination, the appellants had stated that they would adduce evidence in their defence, however, they did not adduce any such evidence during the trial.
33. Mr. B. K. Mahajan, learned counsel for the appellants, has submitted that the Trial Court erred in convicting all the appellants for the offence of murder with the aid of Section 149 of the Indian Penal Code, as the evidence on record does not suggest that the appellants had a common object to commit the murder of the deceased, Hazrat Ali. He has argued that there was no premeditation on the part of the appellants to kill Hazrat Ali, as evidenced by the fact that both the deceased and the appellants attended the village meeting (Bichar), which was convened to discuss the issue of Saina and Rahim (PW-8). He further contended that the CRL.APPEAL NO. 302 OF 2019 Page 25 Page 26 of 40 evidence on record indicates that, during the village meeting, the appellants did not bring any lathis or tree branches, which were allegedly used to assault the deceased. Additionally, he pointed out that the testimony of PW-5 (Joynal Abedin) shows that, after the deceased refused to agree to the decision of the village meeting regarding Saina's marriage to Rahim, the attendees divided into two groups, leading to an exchange of words. This, he argued, demonstrates that the incident occurred due to provocation and in the heat of the moment, rather than as a result of premeditation.
34. The learned counsel for the appellants has further submitted that the evidence on record indicates that, if the appellants had any common object, it was merely to teach the deceased a lesson for objecting to the marriage between his son, Rahim, and Saina, and not to cause his death.
35. The learned counsel for the appellants has also submitted that although the incident occurred on 08.01.2009, the FIR was lodged only after a delay of two days, on 10.01.2009, with no explanation provided for this delay. He further argues that due to the delayed filing of the FIR, the names of the appellants were falsely inserted as an afterthought.
CRL.APPEAL NO. 302 OF 2019 Page 26 Page 27 of 40
36. He has also submitted that the post-mortem examination report of the deceased as well as the testimony of PW-9, i.e., the doctor who conducted the post-mortem examination of the deceased, shows that the death of the deceased was due to the head injury. He has also submitted that the evidence on record indicates that there was only one blow of bamboo lathi by one of the appellants, namely, Anser, on the neck of the deceased and other appellants only used Kendukona tree branches during the attack, which itself shows that their intention was only to teach a lesson to the deceased Hazrat and not to kill him.
37. The learned counsel for the appellants has also submitted that there is insufficient evidence as regards the fact as to whether proper medical treatment was provided to the deceased after he sustained the injury. He submits that the testimony of PW-9, the doctor who conducted the post- mortem examination, shows that the deceased was not admitted in the Civil Hospital, Barpeta, hence, it is also not clear as to whether proper treatment was provided to the deceased or not after he sustained injuries in the incident. He, therefore, submits that the injuries may not be of the nature which would have caused death of Hazrat Ali in the ordinary course of nature.
CRL.APPEAL NO. 302 OF 2019 Page 27 Page 28 of 40
38. The learned counsel for the appellants has thus submitted that the conviction of the appellants under Section 302 of the Indian Penal Code may be converted to conviction under Section 304, Part-II of the Indian Penal Code and a lenient view may be taken in sentencing them under the said provision.
39. To buttress his submission, the learned counsel for the appellants has cited following rulings: -
i. "Hassan Ahmed Laskar @ Hasan Ahmed and Ors. -
Vs- State of Assam and Anr." reported in "2018 SCC OnLine Gau 352".
ii. "Parusuraman Alias Velladurai and Ors. -Vs- State of Tamil Nadu" reported in "1992 Supp (1) SCC 429".
iii. "Arun Turi and Ors. -Vs- State of Assam" reported in "2002 (2) GLT 198".
iv. "Padum Bordoloi and Ors. -Vs- State of Assam and Anr." reported in "2019 (2) GLT 700".
v. "Jugut Ram -Vs- State of Chhattisgarh" reported in "(2020) 9 SCC 520".
40. On the other hand, Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam has submitted that there are eye witnesses implicating the appellants of having assaulted the deceased Hazrat which has resulted into his death. She submits that the PW-1 saw the appellants running away from the place of occurrence and Hazrat was lying there in an injured condition. She also CRL.APPEAL NO. 302 OF 2019 Page 28 Page 29 of 40 submits that the PW-2, PW-3, PW-4 and PW-5 have also seen the appellants assaulted the deceased Hazrat. She also submits that testimony of the prosecution witnesses to the effect that they have seen the appellants assaulting the deceased could not be contradicted. However, she fairly submits that there appears to be no premeditation for the assault as it is evident from the testimony of the witnesses that the assault ensued after the difference of opinion, in the village meeting, regarding the marriage of Rahim with Saina. She also submits that the testimony of PW- 9 (the doctor who conducted the post-mortem examination) also shows that the death of deceased Hazrat was caused due to injuries sustained by him on his head. She also submits that the deposition of the doctor, during his cross-examination, that the deceased would not have survived for long time even if proper treatment would have been provided to him, also shows that the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature. She, therefore, submits that conviction of the appellants and sentenced imposed on them by the impugned judgment does not warrant any interference.
41. On the other hand, Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam, has submitted that there are eyewitnesses implicating the appellants in the assault on the deceased, Hazrat Ali, which CRL.APPEAL NO. 302 OF 2019 Page 29 Page 30 of 40 resulted in his death. She submits that PW-1 saw the appellants running away from the place of occurrence while Hazrat Ali lay there in an injured condition. She further submits that PW-2, PW-3, PW-4, and PW-5 also witnessed the appellants assaulting the deceased. Additionally, she argues that the testimony of the prosecution witnesses, who stated that they saw the appellants assaulting the deceased, could not be contradicted.
42. However, she fairly concedes that there appears to have been no premeditation for the assault, as evident from the witnesses' testimonies, which indicate that the attack ensued following a difference of opinion at the village meeting regarding the marriage of Rahim and Saina. She also refers to the testimony of PW-9, the doctor who conducted the post-mortem examination, which confirms that Hazrat Ali's death was caused by injuries sustained to his head. Moreover, she highlights the doctor's statement during cross- examination, wherein he opined that the deceased would not have survived for long even if proper treatment had been provided, indicating that the injuries were sufficient to cause death in the ordinary course of nature.
43. She, therefore, submits that the conviction of the appellants and the sentence imposed on them by the impugned judgment do not warrant any interference.
CRL.APPEAL NO. 302 OF 2019 Page 30 Page 31 of 40
44. We have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record meticulously. We have also gone through the rulings cited by the learned counsel for the appellants in support of his submissions.
45. In the instant case, the appellants, namely, Hussain Ali (A-1), Hafizur Rahman @ Khandakar (A-2), Abdul Aziz (A-3), Hasen Ali (A-4), Habeluddin (A-5), Rustom Ali (A-6), Abdur @ Abdul Rouf (A-7), Abdul Hoque @ Hai (A-8), Anser Bhuyan (A-9), Saiful Islam (A-10) were convicted for commission of murder of deceased Hazrat Ali on the ground that they had the common object to cause his death after he objected to the proposed marriage of his son Rahim and with the daughter of Anser, namely, Saina.
46. The fact of the death of the deceased, namely, Hazrat, having been caused due to the injuries sustained by him on his head is not in dispute, as same has been proved by the testimony of the PW-9, i.e., the doctor who conducted the post-mortem examination of the deceased.
47. It also appears from the evidence on record that the difference of opinion between the deceased and the appellants regarding the question of marriage of Rahim and Saina led to the incident of assault on the deceased. The evidence of PW-5 shows that in the village meeting itself the CRL.APPEAL NO. 302 OF 2019 Page 31 Page 32 of 40 people were divided into two groups over the aforesaid issue and there was exchange of words between them. It also transpires that when the people from the side of Rahim refused to accept the decision of the village "Bichar" (meeting), they left the meeting and thereafter the accused persons assaulted them.
48. In his deposition, the PW-2 has deposed that the appellants Abdul Aziz (A-3), Hussain Ali (A-1), Hasen Ali (A-
4), Habeluddin (A-5), Hafizur Rahman @ Khandakar (A-2), Anser Bhuyan (A-9), Saiful Islam (A-10), Abdur @ Abdul Rouf (A-7) and Rustom Ali (A-6) and others have assaulted the deceased Hazrat with branches of Kendukona tree and lathi. Though, the testimony of PW-2 did not disclose as to which of the accused persons was wielding what weapon of offence, however, his testimony regarding the appellants assaulting the deceased could not be demolished during his cross-examination. It is however, pertinent to note that though the PW-2 has not specifically named Abdul Haque @ Hai of having been involved in the assault on the deceased Hazrat, the testimony of PW-5 incriminates Abdul Hoque @ Hai (A-8) along with other appellants of having assaulted the deceased Hazrat with branches of Kendukona tree.
49. Though, the testimony of the PW-2 (Ali Akbar) indicates that apart from Hazrat (deceased), the PW-3 (Abdul Khalek), PW-4 (Mohidul Islam), PW-8 (Rahim Ali), PW-5 CRL.APPEAL NO. 302 OF 2019 Page 32 Page 33 of 40 (Joynal Abedin) and he himself were also assaulted, however, apart from the post-mortem report of the deceased, which has been exhibited as Exhibit- 6, no other injury report in respect of any other injured has been exhibited by the prosecution side. However, the evidence of PW-2, PW-3, PW- 4, PW-5 and PW-8 does give an indication that when Hazrat was being assaulted, there was an altercation between two groups. It also shows that when the deceased Hazrat was assaulted, said witnesses were also present and offered resistance indicating that, at the time of incident, commotion took place involving persons from both the sides. This conclusion is also fortified by the testimony of the Investigating Officer (PW-11) as well as that of the PW-2, wherein they have deposed that one Rahim Ali had also filed a case against PW-2 and others, which was registered as Sessions Case No. 372/2015.
50. Though, the prosecution witnesses namely, PW-2, PW- 3, PW-4, PW-5, PW-6, PW-7 and PW-8 have all deposed that the appellants had assaulted Hazrat with branches of Kendukona tree and lathi, it is only the PW-4 who has specifically deposed about accused Anser (A-9) hitting the deceased Hazrat on his neck with a bamboo lathi. The other appellants were only wielding branches of Kendukona tree.
51. It is also evident from the testimony of witnesses that though the appellants attended the village meeting which CRL.APPEAL NO. 302 OF 2019 Page 33 Page 34 of 40 preceded the alleged incident, they did not take any lathi or branches of Kendukona tree to the said meeting. What emerges from the evidence on record is that the incident happened only because of opposition of the deceased Hazrat to the proposed marriage of Rahim and Saina in pursuant to the decision of village meeting. No previous enmity or premeditation on the part of the appellants to commit the alleged offence transpires from the materials on record.
52. Further, though the prosecution witnesses have deposed regarding use of lathi by the accused persons, however, on perusal of the seizure list which has been exhibited as Exhibit-3, it appears that only branches of Kendukona tree were seized. It appears that no lathi was seized by the Investigating Officer which indicates that only the branches of Kendukona tree were used in assault which may not be regarded as deadly weapon.
53. In this regard, the observation made by the Apex Court in the case of "Jugut Ram -Vs- State of Chhattisgarh"
reported in "(2020) 9 SCC 520", relied upon by the learned counsel for the appellants, is relevant and same is reproduced herein below:-
"6. A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault CRL.APPEAL NO. 302 OF 2019 Page 34 Page 35 of 40 simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question of fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh v. State of Punjab [Virsa Singh v. State of Punjab, 1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ 818] , which stand well established. Suffice it to notice from precedents that in Joseph v. State of Kerala [Joseph v. State of Kerala, 1995 SCC (Cri) 165] , the appellant dealt two blows on the head of the deceased. The deceased died two days later. The post-mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone extended up to the temporal bone. The High Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased. This Court observed as follows:
CRL.APPEAL NO. 302 OF 2019 Page 35 Page 36 of 40 (Joseph case [Joseph v. State of Kerala, 1995 SCC (Cri) 165] , SCC p. 167, para 3) "3. ... The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder.
We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years' RI."
7. In Chamru v. State of M.P. [Chamru v. State of M.P., AIR 1954 SC 652 : 1954 Cri LJ 1676] , the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was, medically opined, sufficient in the CRL.APPEAL NO. 302 OF 2019 Page 36 Page 37 of 40 ordinary course to cause death. Conviction under Section 302 IPC followed. This Court observed as follows: (AIR p. 653, paras 5-6) "5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Penal Code.
6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be CRL.APPEAL NO. 302 OF 2019 Page 37 Page 38 of 40 convicted of having committed the offence under Section 304 Part II of the Penal Code and will be sentenced to seven years' rigorous imprisonment."
8. In Gurmukh Singh v. State of Haryana [Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 : (2010) 2 SCC (Cri) 711] , the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death. Holding that the assault was made on the spur of the moment without premeditation, the conviction was altered from one under Section 302 to Section 304 Part II and a sentence of seven years was handed.
Similarly, in Mohd. Shakeel v. State of A.P. [Mohd. Shakeel v. State of A.P., (2007) 3 SCC 119:
(2007) 2 SCC (Cri) 44], the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Sections 302 to 304 Part II IPC, the appellant was sentenced to the period undergone since 1999."
54. In the present case, although the prosecution witnesses have deposed that the appellants assaulted the deceased, Hazrat Ali, with lathis and branches of the Kendukona tree, there is no specific evidence regarding CRL.APPEAL NO. 302 OF 2019 Page 38 Page 39 of 40 which appellant struck which part of the deceased's body, except for the testimony of PW-2, who implicates Anser (A-9) as having dealt a single blow with a lathi on the deceased's neck. As we have already observed, there appears to have been a commotion between those supporting the marriage of Saina with Rahim and those opposing it. It also appears that in the melee that followed the village meeting, the appellants, acting on the spur of the moment, assaulted the deceased with branches of the Kendukona tree, which cannot be classified as a deadly weapon.
55. Hence, though there is evidence to show that the appellants assaulted Hazrat Ali with a common object to teach him a lesson for opposing the marriage of his son Rahim with Saina, however, it cannot be conclusively inferred that they intended to cause such bodily injury which is sufficient in the ordinary course of nature to cause death. We are, therefore, of the considered opinion that the conviction of the appellants under Section 302 of the Indian Penal Code read with Section 149 of the said Code is liable to be set aside and same needs to be converted to conviction under Section 304 Part-II read with Section 149 of the Indian Penal Code. We do the same and also sentence the appellants, under Section 304 Part-II read with Section 149 of the Indian Penal Code, to undergo rigorous imprisonment for eight years each with a fine of Rs. 5,000/- (Rupees Five Thousand) each CRL.APPEAL NO. 302 OF 2019 Page 39 Page 40 of 40 and in default of payment of fine to undergo further simple imprisonment for one month.
56. The conviction and sentence imposed on the appellants, by the Trial Court, under other provisions of law require no interference.
57. As directed by the Trial Court, all the sentences imposed on the appellants shall run concurrently.
58. With above observations, this appeal is partly allowed.
59. Send back the records of the Trial Court, along with a copy of this judgment to the Trial Court.
JUDGE JUDGE Comparing Assistant CRL.APPEAL NO. 302 OF 2019 Page 40