Gauhati High Court
Md. Kachen Ali vs The State Of Assam on 10 March, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal 142 of 2006
Md. Kachem Ali,
S/o. Late Sultan Mia,
Vill- Nahargaon, P.S. Doboka,
Dist.- Nagaon (Assam).
...........Appellant
-Versus-
The State of Assam
..........Respondent
For the Appellant : Mr. P.P. Das, Adv.
For the Respondents : Mr. K.A. Mazumdar, Addl. PP, Assam.
BCEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing & Judgement: 10/03/2015
JUDGEMENT AND ORDER (ORAL)
1. This appeal is directed against the judgement of conviction dated 25/05/2006 of the learned Additional Sessions Judge (Ad-hoc), Hojai at Crl. App. 142/2006-oral dt. 10/03/15 Page 1 of 9 Sankardev Nagar in the district of Nagaon, passed in Sessions Case No. 159 (N) 05 convicting the accused appellant along with another under Section 326/149 ; 436/149 and 148 IPC. Consequent upon such conviction, they have been imposed with the sentence of R.I.; for 3 years with file of Rs. 2,000/- and in default further S.I. for 60 days each ; R.I. for 3 years with file of Rs. 2,000/- and in default S.I. for 60 days and S.I. for 1 (one) year respectively.
2. On the basis of the FIR lodged on 28/01/1993 (Ext. 4) by the victim Shri Kalipada Saha with the Doboka Police Station, Doboka PS Case No. 26/93 was registered under Section 147/148/149/436/326 IPC. As narrated in the FIR, the incident occurred on 08/12/1992 (Tuesday) at around 10.30 a.m. in which thousands of people belonging to one community stormed into the houses of another community and set their houses on fire. As stated in the FIR, the informant's right hand was chopped off by dagger. Injuries were also inflicted on different parts of his body. As regard delay in lodging the FIR, explanation was furnished in the FIR itself with the statement that during the intervening period he was undergoing treatment at Guwahati Medical College and Hospital and after recovery came back to Doboka. It was stated that as he was undergoing treatment, the FIR could not be lodged at the earliest opportunity. The FIR named, apart from the accused appellant, two other accused persons Md. Billal Uddin and Kala Mia. Crl. App. 142/2006-oral dt. 10/03/15 Page 2 of 9
3. With the registration of the case, the I.O. started the investigation and on completion of the same submitted charge sheet. In due course, charge was framed against the accused appellant and said Billal Uddin under Section 148/326/436/149 IPC. As the other accused persons except the present accused appellant and Billal Uddin had absconded, the case against the said absconded accused persons was split up after proving the P&A issued against them.
4. During trial, the prosecution examined 9 PWs. The statement of the accused persons were also recorded under Section 313 Cr.P.C. Raising the following points for determination, the learned trial Court having passed the impugned judgement of conviction and sentence, the accused appellant preferred this appeal:-
"i. Whether the accused persons along with others by forming an un-lawful assembly, armed with deadly weapons, committed rioting on the relevant day, time and place ?
ii. Whether the accused persons along with others, being members of an unlawful assembly, voluntarily caused grievous hurt to Sri Kalipada Saha by means of dao and sword on the relevant day, time and place ?
Crl. App. 142/2006-oral dt. 10/03/15 Page 3 of 9
iii. Whether the accused persons being members of an unlawful assembly and in prosecution of the common object of that assembly, committed/mischief by damaging the dwelling houses of the complainant, his family members and others by setting fire to them on the relevant day, time and place ?"
5. I have heard Mr. P.P. Das, learned counsel for the accused appellant and have also heard Mr. K.A. Mazumdar, learned APP, Assam. I have also perused the entire materials on record.
6. Be it stated here that pursuant to the order passed by this Court on 28/06/20906 in MC No. 2290/2006, the accused appellant Kashem Ali is on bail and thus he has not undergone the sentence imposed on him pursuant to the impugned judgement of conviction. According to Mr. Das, learned counsel for the accused appellant, there being no ingredients to establish commission of the offence by the accused appellant, the impugned judgement of conviction is not sustainable in law. It is further submitted by him that there is no evidence to convict the accused appellant as a member of the un-lawful assembly. He has specifically referred to the following grounds urged in the memo of appeal :-
"(ii) For that there was not an iota of evidence to show that there was an unlawful assembly in Crl. App. 142/2006-oral dt. 10/03/15 Page 4 of 9 and around the residence of the first informant on 8.12.92 in order to commit the offence alleged in the First Information Report.
(iii) For that there was not an iota of evidence to implicate the present appellant in commission of the offences under Section 436/149 of IPC.
(iv) For that the prosecution miserably failed to prove that the present appellant caused grievous hurt to the First Informant, P.W.1 along with 2 (tow) other co-accused in prosecution of a commo0n object of the unlawful assembly".
7. Mr. K. A. Mazumdar, learned Additional PP, Assam, on the other hand submits that when the evidence of PWs are over-whelming to establish the commission of the offence by the accused persons, the impugned judgement of conviction is not liable to be interfered with.
8. PW-1 is the complainant who in his deposition categorically stated that on 18/12/1992 at about 10.00 a.m., while he was in his house with his family members, he saw hundreds of people raising the particular slogan, came to his house. At that time he was left alone at his house and his other family members ran away to save their lives. Accused appellant along with Billal Uddin and one Md. Kala Mia dragged Crl. App. 142/2006-oral dt. 10/03/15 Page 5 of 9 him out of his house to his field. While Billal Uddin had sword in his hand, the accused appellant and Kala Mia had dao in their hands. All the accused appellants had assaulted him with dao and sword and his hands were chopped off. Injuries were shown to the trial Court and it was noticed that one of his hand was completely cut off from his body and the fingers of another hand were also severed. He in his deposition stated that he and his family members were rescued by the Army. He was first taken to Nagaon Civil Hospital and thereafter to Gauhati Medical College and Hospital, where he undergone treatment for about 1 ½ months. He also stated in his deposition that he and his family members had to stay in relief camp on their return from Guwahati Medical College and Hospital. He deposed that both the accused persons i.e. Billal Uddin and Kala Mia were his neighbor and he could easily identify them.
9. PW-2 is the brother of the complainant who also in his deposition narrated the same version. According to him, there were about 100/150 persons who entered to their house. PW-1 i.e. his brother was in his house at that point of time and his other family members were hiding. He could see the accused persons dragging out Kalipada Saha i.e. the PW-1 from his house to the field and assaulting him, as a consequence of which one hand of Kalipada Saha got chopped off. He also sustained several other injuries on different parts of his body. Later on, Army Crl. App. 142/2006-oral dt. 10/03/15 Page 6 of 9 came and saved them from the hands of the miscreants. He also stated that firstly the PW-1 taken to Nagaon Civil Hospital wherefrom he was sent to Guwahati Medical College and Hospital for treatment, where he stayed for about 1 ½ months. He also stated that his wife i.e. PW-4 also sustained injuries and so did he.
10. PW-3 and PW-4 also supported the prosecution story and the version of PW-1 and PW-2. They categorically stated that the accused appellant along with Billal also accompanied the miscreants and they could identify both the accused. They also stated that PW-1 was dragged out from his house to the field and one of his hands was chopped off. He was also inflicted with other injuries on different part of his body. PW-4 also stated in her deposition that she was also assaulted. While making deposition, she had shown the parts of her body where she sustained injuries. PW-4 also stated that her husband i.e. PW-2 was also assaulted.
11. PW-5, PW-6 and PW-7 also stated in their deposition that on the day of occurrence, thousands of people came and surrounded their villages and set on fire their houses and looted the articles. .
12. PW-8 is the I.O. who in his deposition generally stated about the investigation that was carried out.
13. PW-9 is the Doctor who was working in Doboka CHC on 08/12/1992. At that time, Dr. Nazrul Islam was incharge of the CHC. He in his Crl. App. 142/2006-oral dt. 10/03/15 Page 7 of 9 deposition stated that the documents pertaining to treatment in respect of injured persons was destroyed due to storm and rain.
14. Discussing the evidence on record, the learned trial Court has held that the offence attributed to the accused persons stood clearly established and accordingly has convicted he accused appellants with the sentence above mentioned. Although, it was submitted by Mr. Das, learned counsel for the appellant that ingredients of Section 149 IPC are missing, inasmuch as, there is no evidence to show that the accused appellant was engaged in setting on fire the houses of the people. Suffice is to say that when the accused persons were members of the un- lawful assembly, they became responsible for the action/mischief committed by the other members of the said ASEMBLY. It is in the evidence of PW-5, 6 and 7 that the un-lawful assembly surrounded the villages and set on fire the houses of a particular community. The accused persons were members of the said unlawful assembly and engaged themselves in assaulting the PW-1, PW-2 and PW-4, as a consequence of which PW-1 lost one of his hands and fingers of the other hand. In such a situation, the learned trial Court has rightly held the accused persons guilty of the offences punishable under Section 326/149 ; 436/149 and Section 148 of IPC, I see no reason to interfere with the impugned judgement of conviction and sentence.
Crl. App. 142/2006-oral dt. 10/03/15 Page 8 of 9
15. In view of the above, the appeal is dismissed. Earlier bail bond executed by the accused appellant stands cancelled. Now the accused appellant shall surrender before the learned trial Court to undergo the period of sentence imposed by the impugned judgement.
16. At this stage, learned counsel for the appellant prays for a month's time for the appellant to do so. Time is allowed upto 31/03/2015.
17. The Registry shall send down the case records to the learned Court below along with the copy of this judgement.
18. Before parting with the case record, it is hereby provided that the victim, namely, Shri Kalipada Saha will be entitled to compensation in terms of Govt. of Assam, Political Department, notification dated 18/10/2012. The jurisdictional District Legal Services Authority shall do the needful in this regard, for which a copy of the judgement shall also be sent to the said authority by the Registry.
JUDGE Sukhamay Crl. App. 142/2006-oral dt. 10/03/15 Page 9 of 9