Gauhati High Court
Mukaddesh Ali & Ors vs State Of Assam & Ors on 19 February, 2015
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IN THE GAUHATI HIGH COURT
(THE HI GH COURT OF ASSAM , NAGALAND, M I ZORAM
AND ARUNACHAL P RADESH )
Crl.A 19/2003
1. M ukaddesh Ali
2. M d. Ali Akbar
(Both sons of Hasen Ali)
3. Abdul M otleb,
S/o- Ibabat Ali
4. M d. Harun Badshah alias Badsha M iah
5. Gofur Ali
S/o- Late Intaz Ali
6. Chandu M iah,
S/o- Fazar Ali
(All are residents of village Hatipota, P.O-
and P.S- Dhaligaon, District- Bongaigaon,
Assam)
......... Appellants
-Versus-
1. The State of Assam
............ Respondent
For the appellants : Ms .P. Baruah, Amicus Curie
Mr. A.D. Choudhury, Adv
For the respondent : Mr. D. Das, Addl.P.P.
BEFORE
HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing : 19.02.2015
Date of Judgment : 19.02.2015
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JUDGMENT & ORDER (ORAL)
1. This appeal is directed against the judgment of conviction dated 11.12.2002 of the learned Sessions Judge, Bongaigaon in Sessions Case No.29(D)/1998, convicting the 06(six) accused/appellants, namely, Mukaddesh Ali, Ali Akbar, Abdul Matleb, Gafur Ali, Badshah Miah and Chandu Miah u/s 148, 323/149 and 436/149 of the IPC. Consequent upon such conviction, the accused/appellants have been sentenced to undergo rigorous imprisonment for 06(Six) months each for the offence u/s 148 IPC; rigorous imprisonment for 03(three) months each for the offence u/s 323/149 IPC and rigorous imprisonment for 03(three) years with fine of Rs.1000/- (rupees one thousand) each and in default, rigorous imprisonment for further 15(fifteen) days for the offence u/s 436/149 IPC. The sentences of imprisonment are to run concurrently.
2. As submitted by Mr. D Das, learned Additional Public Prosecutor, Assam, since the accused/appellants were granted bail vide order dated 17.01.2003 in Criminal Misc Case No.20/2003 and were allowed to remain on previous bail, no period of sentence has been undergone by the accused/appellants. However, during trial, they were in custody for about 15 days or so.
3. I have heard Ms. Purnima Baruah, learned Amicus Curie along with Mr. A.D. Choudhury, learned counsel for the accused/appellants. I have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam and have also gone through the evidences on record.
4. Referring to the evidences on record, Ms. P. Baruah, learned Amicus Curie submits that there being inherent contradictions in the testimonies of the PWs coupled with the fact that the PWs are all interested witnesses, the impugned judgment of conviction is not sustainable. She further submits that the testimonies of Pw-1, Pw-2, Pw-4 and Pw-5 although bear thumb impression, but there being no identification as to whose thumb impressions are in the said deposition, their evidences cannot be relied upon. On this, Mr. D. Das, learned 3 Additional Public Prosecutor, Assam submits that when the PWs put their thumb impressions after making the depositions, such plea cannot be accepted, more particularly, when such depositions duly bear the signatures and seals of the learned Sessions Judge. He further submits that there being overwhelming evidence towards conviction of the accused/appellants, the impugned judgment of conviction is not liable to be interfered with.
5. Being confronted with the aforesaid submissions made by Mr. D. Das, learned Additional Public Prosecutor, Ms. P. Baruah, learned Amicus Curie, submits that it being a case of protracted proceeding covering almost 30 years and the accused/appellants having settled down in their respective life for the last 30 years, in case of upholding the judgment of conviction, a lesser penalty would be justified.
6. The prosecution case in brief is that on 23.02.1986 at about 8 A.M. while Abdul Khalek and his two other brothers Abdul Jalil and Abdul Kader were busy in earth filling work at their residence, the accused Makaddesh Ali appeared there in furious mood and began to roar. He was followed by accused Abdul Motleb, Gofur Ali, Badsha Mia, Chandu Mia, Sukur Ali, Khadem Ali, Mortez Ali and other inmates of their house being armed with dao, lathies, spear etc deadly weapons. Then accused Makadesh Ali and his brother accused Ali Akbar assaulted Abdul Khalek and his brother Abdul Jalil by lathies. Accused Sukur Ali and Chandu Mia assaulted Abdul Kader and Abdul Jalil. Accused Gofur Ali, Motleb, Badsha Mia and MOrtez and Khadem Ali and their other relatives threatened Abdul Khalek, Abdul Jalil and Abdul Kader with dire consequences. In the mean time at the instigation of accused Makadesh Ali, Khadem Ali and their relative one Usman Ali set fire to 4 nos of houses belonging to Abdul Khalek, Abdul Jalil and Abdul Kader and thereby burnt the same to ashes and also assaulted their wives. Abdul Khalek, Abdul Jalil and Abdul Kader sustained injuries on their persons. Abdul Khalek then rushed to Dhaligaon police station and lodged written FIR to the effect as stated above.
47. The Officer-in-Charge of Dhaligaon police station on receipt of the FIR registered a case u/s 147/148/149/341/325/114/436/427/354 IPC. Sub Inspector of police Gouri Sankar Ram investigated the case and thereafter on his transfer S.I of police Akhil Das the then Officer-in-Charge of Dhaligaon police station after completion of investigation laid charge sheet against the accused Makadesh Ali, Khadem Ali, Ali Akbar, Chandu Mia, Badsha Mia, Fofur Ali, Mortez Ali, Sukur Ali and Motleb u/s 148/149/323/436 of the IPC. In the meantime, accused Khadem Ali and Mortez Ali died while accused Sukur Ali absconded.
8. In due course, charges were framed against the accused/appellants u/s 148/149/323/436 IPC. The charges were read over and explained to the accused/appellants, to which they pleaded not guilty and claimed to be tried.
9. During trial, prosecution examined 13 witnesses and produced the following documents and articles:-
Ex t.1- Injury R eport, Ex t.2- W ritten FIR , Ex t.3-Charge sheet, Ex t.4-Sketch M ap, Ex t.5-Seizure List M aterial Ex t.1- A piece of half burnt bam boo, M aterial Ex t.2- Half burnt alum inum utensil, M aterial Ex t.3- One half burnt frying pan.
The accused/appellants were also examined u/s 313 Cr.P.C. enabling them to explain the circumstances appearing against them. They pleaded their innocence. In their defence, they also examined three witnesses as DW-1, DW-2 and DW-3.
10. The learned trial Court appreciating the evidence on record, having convicted and sentenced the accused/appellants as aforesaid, they preferred this appeal. As noted above, upon admission of the appeal, the 5 accused/appellants were allowed to remain on previous bail vide the order dated 17.01.2003 passed in Criminal Misc Case No.20/2003.
11. From the evidence on record, it appears that there was some land dispute between the parties as a sequel to which the incident occurred. There is no dispute that the incident occurred on the day of occurrence. The evidence of PW-1 to PW-7, PW-10 and PW-12 and also the evidence of DWs clearly established the same. The incident occurred within the precinct of the residence of PW-1, PW-2 and PW-3. The evidence of the said witnesses are corroborative in nature. They in their depositions stated that on the day of occurrence, PW-1, PW-2 and PW-3 had three dwelling houses and their cow shed and they used to live there with other members of the family. This fact also finds support from the evidence of the Investigating Officer (PW-13) and from the sketch map (Ext.4), prepared by him immediately after the occurrence. There is also no denial of this factual position, rather the evidence of DWs lend support to this factual aspect.
12. PW-8 is the doctor, who had examined the injured persons. He in his deposition stated that at that relevant point of time, he was serving at Bongaigaon 30 Bedded Rural Hospital. He had the occasion to examine PW-1 and PW-2 on 23.02.1986 on requisition of police and on examination, he found the following:-
Tw o lacerated injuries on upper part of the head m easuring 3cm x 5cm x skin deep and 2.5 cm x 0.5 cm x skin deep and tenderness on the back (left side) of Abdul Khaleque and one lacerated injury on the left parietal region of the head m easuring 3.5 cm x 0.6 cm x skin deep and tenderness and sw elling on the lateral aspect of left thigh (low er part) of Abdul Jalil. The doctor also expressed the opinion that the injuries w ere fresh and sim ple in nature and w as caused by blunt w eapon.6
13. PW-1, PW-2, PW-3, PW-4 and PW-6 categorically stated in their deposition about commission of the offence attributed to the accused/appellants. Their testimonies are duly corroborated by PW-5, PW-7, PW-10 and PW-12. PW- 1, PW-2 and PW-3 in their depositions stated that on the day of occurrence i.e. on 23.02.1986 at about 8 A.M. while they were busy in earth filling works at their residence, the accused/appellants along with absconding accused and other associates including the DW-1 being armed with Dao and Lathi etc appeared in a body and attacked them. They assaulted the injured with lathis. PW-1, PW-2 and PW-3 in their depositions further asserted that after assaulting them, they also set fire to their dwelling houses as a result of which the houses along with their belongings burnt to ashes.
14. PW-4 and PW-6 were present at the place of occurrence and they in their depositions categorically stated as to how the accused/appellants arrived at the place of occurrence and assaulted the injured and thereafter set fire to the houses. They in their depositions while categorical that the accused/appellants had come in a body with various weapons including lathis, they also saw the accused/appellants assaulting PW-1, PW-2 and PW-3.
15. Although the defence thoroughly cross examined all the PWs, but nothing contradictory could be brought out. The evidence of PW-1, PW-2, PW-3, PW-4 and PW-6 are all corroborative on the primary point of assault being launched by the accused/appellants and setting on fire the houses.
16. PW-5 and PW-7 although were not present in the house i.e. at the place of occurrence, but they heard from other inmates particularly from PW-6 that the accused/appellants came in a body and assaulted PW-1, PW-2 and PW-3 causing injuries on their persons and thereafter set fire on their residential houses. Thus, the evidence of PW-5 and PW-7 lend support to the evidence of PW-1, PW-2, PW-3, PW-4 and PW-6.
717. PW-10 also stated in his deposition that he could see the houses of the PW-1, PW-2 and PW-3 being set on fire by the accused/appellants.
18. PW-12 is a registered contractor by profession. He is an independent and disinterested witness. He knew PW-1, PW-2 and Pw-3 and also the accused persons. Although he was declared hostile, but he admitted about seeing the occurrence from a distance of about 100 meters. He also saw the assault and arson including the burning of the houses. He also admitted that the police took his statement on the day of occurrence and he clearly named the accused/appellants in the said statement.
19. DW-1 and DW-2 were initially co-accused and DW-3 is one of the accused. Immediately after the incident, accused Makadesh Ali also lodged an FIR which was registered as Dhaligaon P.S. Case No.10/1986 u/s 447/325 IPC (Ext.Ka). The allegation made therein was that PW-1, PW-2 and PW-3 were filling up the canal over the land of Makadesh Ali for constructing a house. Protest being raised, PW-1 dealt a blow on him with Khanti (a bend of iron instrument meant for digging earth). A final report was submitted bearing No.37 u/s 173 of the Cr.P.C. The said report reveals that the case was duly investigated but no evidence was found and the allegation was found to be false. The learned Chief Judicial Magistrate, Kokrajhar accepted the final report. Above apart, the evidence of DWs does not lend any support to the case of the defence in view of the overwhelming and corroborative evidences of the PWs.
20. Above being the position, I see no reason to interfere with the impugned judgment of conviction. At the same time, it will also have to be borne in mind that the instant proceeding relates to an incident that occurred about 30 years back on 23.02.1986. It is in this context, Ms. P. Baruah, learned Amicus Curie has submitted that the accused/appellants may not be made to undergo the imprisonment for 03(three) years. According to her, having regard to the sufferings already undergone by the accused/appellants for long 30 years in fighting litigation, the sentence is required to be reduced.
821. The accused/appellants have been sentenced to undergo rigorous imprisonment for 06(six) months and 03(three) months respectively for the offence u/s 148 IPC and 323/149 IPC. They have been sentenced to undergo rigorous imprisonment for 03(three) years for the offence u/s 436/149 IPC. Considering the aforesaid facts and circumstances, the sentence of rigorous imprisonment for 03(three) years in respect of the offence u/s 436/149 IPC shall stand reduced to 06(six) months without, however, any interference with the imposition of fine in respect of the said offence.
22. The appeal stands disposed of with the aforesaid modified sentence. The accused/appellants shall now surrender before the learned trial Court to undergo the modified sentence of 06(six) months. The period they have already undergone in custody shall stand set off from this modified sentence.
23. Registry shall send down the LCR to the learned Court below along with a copy of this judgment and order.
24. Before parting with the record, I place on record my words of appreciation for Ms. P. Baruah, learned Amicus Curie for the services rendered by her in assisting the Court. It is hereby provided that she will be entitled to hearing fee of Rs.5000/- (Rupees five thousand), upon production of the copy of this judgment and order, which shall be provided to her by the Registry free of costs. The hearing fee shall be paid by the District Legal Services Authority, immediately.
JUDGE Alam