Gauhati High Court
Md. Babul Hussain Laskar @ Babul ... vs The State Of Assam & Anr on 24 August, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal No. 301 of 2014
1. Md. Babul Hussain Laskar @ Babul Hussain,
Son of Md. Jalal Uddin Laskar,
2. Md. Jalal Uddin Laskar @ Jalal Uddin,
Son of Late Atabur Rahman,
3. Ashir Ali,
Son of Md. Kalamdar Ali,
4. Monojar Ali @ Monozir Ali,
Son of Md. Kalamdar Ali,
All are Resident of Village-Uttar Dalaichera,
P.S. Lakhipur, Dist. Cachar, Assam.
----- Appellants
- VERSUS -
1. State of Assam.
2. Md. Tasub Uddin Mazumdar
Son of Abdul Kuddush Mazumdar,
Resident of Village-Uttar Dalaichera,
P.S. Lakhipur, Dist. Cachar, Assam.
----- Respondents.
BEFORE Hon'ble Mr. Justice Hitesh Kumar Sarma Advocate for the Appellant : Mr. MG Singh, Mr. SK Singha, Mr. B Kumar, Mr. MK Neog, Mrs. M Deka, Advocates.
Advocate for Respondent : Mr. BJ Dutta, Additional Public Prosecutor.
Date of hearing and Judgment & Order :: 24th of August, 2017.
Crl. Appeal No. 301 of 2014 Page 1 of 10JUDGMENT & ORDER (Oral) This appeal, under Section 374(2) of the Cr.P.C., has been preferred by the accused-appellants, namely, 1. Md. Babul Hussain Laskar @ Babul Hussain, 2. Md. Jalal Uddin Laskar @ Jalal Uddin, 3. Ashir Ali and 4. Monojar Ali @ Monozir Ali, against the judgment and order, dated 19-08-2014, passed by learned Additional Sessions Judge (FTC), Cachar, Silchar, in Sessions Case No. 79 of 2008, convicting the accused- appellants, under Sections 148/323/447/436/149 of the IPC and sentencing each of the accused-appellants to undergo simple imprisonment for 1 month and to pay a fine of Rs.300/-, in default, to suffer simple imprisonment for a further period of 15 days, for the offences punishable under Sections 447/149 IPC. Simple imprisonment for 6 months and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for a further period of 15 days, for the offences punishable under Sections 323/149 IPC. Rigorous imprisonment for 5 years and to pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for a further period of 3 months, for the offences punishable under Sections 436/149 IPC.
2. I have heard Mr. SK Singha, learned counsel appearing on behalf of accused-appellants and Mr. BJ Dutta, learned Additional Public Prosecutor, Assam.
3. The prosecution case, as unfolded during the trial is that, on 02-05- 2008, at about 8.00 p.m., the accused-appellants, along with others, forming an unlawful assembly and armed with deadly weapon, like dao, lathi etc. entered into the compound of the dwelling house of the younger brother of the complainant, namely, Samir Uddin Mazumder and assaulted Abdul Kuddus Mazumdar, Samir Uddin Mazumdar, Ain Uddin Mazumdar, Tosub Uddin Mazumdar and Salim Uddin Laskar causing injuries to their persons. They also set fire in the dwelling house of Samir Uddin Mazumdar aforesaid.
Crl. Appeal No. 301 of 2014 Page 2 of 104. On the above facts, an FIR was lodged with the Lakhipur Police Station. On receipt of which, a case, being Lakhipur Police Station Case No. 123/2008, under Sections 147/148/149/448/323/324/436 of the IPC was registered. Police investigated into it, collected evidence, arrested the accused-appellants, and after completion of the investigation, finally, submitted charge-sheet against the accused-appellants, under Sections 147/148/323/324/447/436/149 of the IPC.
5. On receipt of the case, on being committed by the learned Chief Judicial Magistrate, learned trial Court of Additional Sessions Judge framed formal charge against the accused-appellants and others, under Sections 147/148/323/324/447/436/149 of the IPC, to which the accused-appellants and others pleaded innocence. Thus, the trial commenced.
6. The prosecution examined as many as 10 witnesses in this case, whereas the defence examined none. In his statement, recorded under Section 313 Cr.P.C., the accused persons are found to have denied the accusations levelled against them and they have taken the plea that there was land dispute between the parties following which the accused persons have been falsely implicated.
7. In the cross-examination of the prosecution witnesses also the defence appear to have taken the stand that it was because of land dispute, a false case has been instituted against them with the allegation of commission of offences under the provisions of law as aforesaid.
8. In view of the facts of the case and the evidence led by the prosecution, the following points arose for determination:
"(a) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the said assembly committed the offence of rioting and thereby committed an offence U/S 147 R/W Sec. 149 I.P.C?Crl. Appeal No. 301 of 2014 Page 3 of 10
(b) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the said assembly committed the offence of rioting with deadly weapon like lathi, dao, bollom etc. and thereby committed an offence U/S 148 R/W Sec. 149 I.P.C?
(c) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the such assembly committed criminal trespass by entering into the compound of dwelling house of the informant and his brother father with an intent to commit an offence of mischief by fire, assault and rioting and thereby committed an offence U/S 447 R/W Sec. 149 I.P.C?
(d) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the such assembly, voluntarily caused hurt to Abdul Kuddus Mazumdar, Samir Uddin Mazumdar, Ain Uddin Mazumdar, Tosub Uddin Mazumdar and Salim Uddin Laskar by means of sharp weapons and thereby committed an offence U/S 324 R/W Sec. 149 I.P.C?
(e) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the such assembly, voluntarily caused hurt to Abdul Kuddus Mazumdar, Samir Uddin Mazumdar, Ain Uddin Mazumdar, Tosub Uddin Mazumdar and Salim Uddin Laskar and thereby committed an offence U/S 323 R/W Sec. 149 I.P.C?
(f) Whether the accused persons on 02/05/2008 at about 8 PM at village Uttar Dolicherra under Lakhipur P.S. were a member of unlawful assembly and in prosecution of the common object of the such assembly, committed mischief by setting fire on the dwelling house of brother of the informant and thereby committed an offence U/S 436 R/W Sec. 149 I.P.C?
9. I have meticulously scanned the evidence on record. It appears from the evidence of PW1, Tosub Uddin that at about 8.00 p.m., while he was taking dinner along with the members of his family, he heard shouting with the words 'marililora', then he came out from his house and could see in the light of fire that their old homestead, situated at a distance of half furlong, was burning. In their old homestead, his parents Crl. Appeal No. 301 of 2014 Page 4 of 10 and brothers were residing. He rushed to the place of occurrence, then, accused Sahab Uddin @ Siab Uddin gave a lathi blow on his head, causing injuries to his person. He found the other accused-appellants there. His father, Abdul Kuddus, Ain Uddin, Samir Uddin, his sister-in-law, Najibun Nessa, his sister, Ajibun also sustained injuries, caused by the accused-appellants.
10. The accused-appellants did not allow them to go to the place of occurrence initially; therefore, their house got completely gutted in fire causing damage to the poultry including goats, paddy, utensils and all the household materials.
11. PW2, Abdul Kuddus Mazumdar, appears to have led evidence of similar nature with that of PW1 and insisted in his evidence that it was accused-appellants and co-accused, who assaulted him and set fire to their dwelling house.
12. PW3, Samir Uddin also stated in his evidence that the accused- appellants, particularly, Monojor and Siab Uddin assaulted him, his father and his brother, Ain Uddin. PW3 deposed that he had seen the accused persons leaving the place of occurrence.
13. PW4, Salim Uddin, appears at the place of occurrence after hearing alarm raised by his sister, Nazibur Nessa. There he was hit by someone with bollom, he became unconscious and fell down. Before she became unconscious, he witnessed the house of his sister burning and he had no idea as to who set fire in the house.
14. PW5, Nazibur Nessa is found to have deposed in her evidence that at the time of occurrence, she was with her husband, Samir Uddin, brother-in-law, Tasub Uddin and others. Rafique Uddin, Siab Uddin, Monojor and other having lathi, bollom etc. in their hands assaulted her, her husband, Samir Uddin, brother-in-law, Tasub Uddin, Ain Uddin, Salim Uddin. Thereafter, they set fire in the dwelling house, causing damage to the livestock and other utensils.
Crl. Appeal No. 301 of 2014 Page 5 of 1015. The evidence of PW6, Ain Uddin appears to be in conformity with the evidence of PW4 and PW5 to the effect that the accused persons assaulted them and set their dwelling house in fire.
16. PW7, Nurjan Begum Mazumdar, is found to have stated that while she was in her uncle, Samir Uddin's house, the accused-persons entered there, dragged them out, assaulted them and set the dwelling house in fire.
17. PW8, Musstt. Ajibun Nessa, in her evidence stated that at the time of occurrence, she was at the house of her father, Abdul Kuddus. The accused persons armed with dao, lathi, bollom etc. assaulted her, her father, Abdul Kuddus, Samir Uddin, Inu Uddin etc. She somehow escaped from the house and took shelter in the nearby jungle. She witnessed that their house was completely burnt.
18. PW9, Dr. Dilip Rudra Sharma, who examined the 5 injured persons. He has given his opinion in his report, which is reproduced below:
"1. Abdul Kuddus Mazumdar:
The injured person had cut injury 1"x ½" x ¼" over extensor aspect of right fore-arm.
Nature of injury: Simple caused by sharp weapon. The injury was fresh.
2. Samir Uddin Mazumdar:
One injury over the right-side of back 1"x1/2"x ¼". Nature of injury simple fresh and caused by sharp object.
3. Ain Uddin Mazumdar:
Cut injury over scalp, 2"x ½" ¼". Nature of injury simple, fresh and caused by sharp weapon.
4. Tosub Uddin Mazumdar:
Cut injury over scalp 1 and ½" x ½" x ¼" .
Nature of injury simple, fresh and caused by sharp object.
5. Salim Uddin Laskar.
Cut injury over scalp 1"x ½"x ¼".
Nature of injury simple, fresh and caused by sharp object.".
19. PW10, Badshah Prasad Singh, is the Investigating Police Officer, who has narrated about the various stages of investigation including the Crl. Appeal No. 301 of 2014 Page 6 of 10 examination of the injured persons by the doctors and also the stages till filing of charge-sheet against the accused-appellants and others.
20. In the cross-examination of the above witnesses, there are some discrepancies with reference to the persons who assaulted the injured persons and with regard to the facts as to who had set fire in the house. The fact of setting fire in the house and the injuries, however, remained intact even during the cross-examination. The discrepancies noticed in the cross-examination will be dealt with in the later part of this judgment.
21. It appears from the evidence on record that the accused- appellants were more than 5 persons and they came together armed with lathi, dao, bollom etc. and thereafter assaulted the injured persons referred to in the evidence of PW9, the doctor. The offences they have committed and the manner in which they appeared at the place of occurrence is indicative of the fact, beyond reasonable doubt, that there was common object to assault the injured persons and to set fire in their house. There is no doubt to that effect at the Bar also, considering the facts and circumstances of the case as a whole. Therefore, the offence under Section 149 is attracted in this case.
22. So far as the evidence of assault is concerned, as indicated above, in the evidence of witnesses, the aforesaid 5 persons, named in the report of the doctor, sustained injury at the time of occurrence by the accused-appellants although there are different versions of different witnesses as to the cause of injuries. But these discrepancies are because of the situation in the instant case. This Court cannot expect that all the witnesses will observe the happenings in the same manner. There may be discrepancy in observing a situation one from other and such discrepancy is to be accepted as natural in the given situation. To the given situation, it is more than impossible to observe each and every act of a particular person accurately; rather, it is natural, which points to the truthfulness of their versions.
Crl. Appeal No. 301 of 2014 Page 7 of 1023. On the other hand, the accused persons are convicted under Section 323 IPC; therefore, this Court is not inclined to go into the nature of injuries and whether it would have attracted the other provisions of IPC. In view of the fact that on the basis of the evidence on record, the learned trial Court convicted the accused-appellants and sentenced them under Section 323 IPC, so far as the assault part is concerned. On the basis of the evidence on record, so far injuries are concerned, if this Court believes the evidence then the offences would have attracted under a provision of Indian Penal Code, involving higher penalty, which this Court cannot not do without affording opportunity of hearing to the appellants.
24. So far as the evidence in respect of offence under Section 447 is concerned, it has unanimously come out from the evidence on record that the place of occurrence was the house of the brother of the informant, where the house was set in fire and injured were assaulted by the accused-appellants and others. The occurrence took place in the late evening at 8.00 p.m. There is no explanation in the evidence or statement under Section 313 Cr.P.C. of the accused-appellants as to what for the accused-appellants were present at the house, which belong to the brother of the informant. Therefore, their presence in the place of occurrence with arms and in view of the evidence that they entered into the house involved in this case itself shows that they trespassed the house of the informant's brother with a view to committing the offences, thus attracts the provisions of Section 447 of the IPC.
25. Now, let us come to the offence alleged to have been committed under Section 436 IPC. The evidence of all the witnesses appears to be consistent in respect of setting fire in the dwelling house of the brother of the informant. Of course, there are minor inconsistencies in the evidence as regards the facts as to from which place the witnesses saw the occurrence, as to who had burnt the house, yet such Crl. Appeal No. 301 of 2014 Page 8 of 10 discrepancies are not so glaring that it touches the root of the case; rather, as stated earlier, such discrepancies are natural and such discrepancies also are guarantee of the truthfulness of the version of the witnesses. The Investigating Police Officer also seized certain articles from the house, which was burnt into ashes, thereby supporting the evidence of the other witnesses in respect of the fact that the house, in question, was set in fire and thus burnt into ashes. Therefore, the accused- appellants cannot escape the liability of commission of the offence in furtherance of their common object. Although individual name of accused-appellants did not come up in the evidence except in the evidence of PW3, to the effect that the accused Monojor set the house in fire.
26. In view of above discussions, of the evidence on record, and the findings recorded during the course of discussions, this Court is of the view that there is nothing to interfere with the judgment of the learned trail Court so far as the conviction of the accused-appellants are concerned as the same is based on evidence on record and there is no illegality and impropriety in recording such finding by the learned trial Court.
27. So far as punishment of the accused-appellants are concerned, this Court is of the view that sentencing each of the accused-appellants to undergo simple imprisonment for 3 years and 6 months and to pay a fine of Rs.2000/-, in default, to suffer simple imprisonment for a further period of 15 days, for the offences punishable under Sections 436 IPC; simple imprisonment for 1 month and to pay a fine of Rs.300/-, in default, to suffer simple imprisonment for a further period of 7 days, for the offences punishable under Sections 323 IPC and Simple imprisonment for 1 month and to pay a fine of Rs.300/-, in default, to suffer simple imprisonment for a further period of 7 days, for the offences punishable under Sections 447 of the IPC, will meet the ends of justice.
Crl. Appeal No. 301 of 2014 Page 9 of 1028. Accordingly, the sentence of each of the accused-appellants is modified as follows:
(a) Simple imprisonment for 3 years and 6 months and to pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for a further period of 15 days, for the offences punishable under Sections 436 of the IPC;
(b) Simple imprisonment for 1 month and to pay a fine of Rs.300/-
in default, to suffer simple imprisonment for a further period of 7 days, for the offences punishable under Sections 323 of the IPC; and
(c) Simple imprisonment for 1 month and to pay a fine of Rs.300/-, in default, to suffer simple imprisonment for a further period of 7 days, for the offences punishable under Sections 447 of the IPC. The sentences are directed to run concurrently.
29. In view of above, the appeal is partly allowed.
30. Send down the LCR along with a copy of this judgment and order.
JUDGE Paul Crl. Appeal No. 301 of 2014 Page 10 of 10