Gauhati High Court
Md. Jalaluddin And 2 Ors vs The State Of Assam on 26 June, 2020
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GAHC010218772012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 281/2012
1:MD. JALALUDDIN and 2 ORS
S/O LT. FAZAR ALI,
2: MD JAMALUDDIN
S/O LT. FAZAR ALI
3: MD ABDUL KHALEQUE
S/OMD ABDUL KADIR
ALL ARE R/O VILL- PANBARI
P.S. DHING
DIST. NAGAON
ASSA
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MR.M SARANIA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT
Date : 26-06-2020 Heard Mr. M. Sarania, learned counsel for the petitioners and Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam for the State.
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2. This revision petition is directed against the judgment and order dated 11.04.2012, passed by the learned Sessions Judge, Nagaon in Criminal Appeal No. 24/2009, whereby the petitioners were convicted under Sections 341/ 323/ 324/34 of the IPC and sentenced them to simple imprisonment of 15 (fifteen) days under Section 341 IPC, simple imprisonment of 3 (three) months and fine of Rs. 1,000/- with default stipulation under Section 323 IPC and rigorous imprisonment of 1 (one) year and fine of Rs. 1,000/- with default stipulation under Section 324 IPC.
3. The prosecution case which may be relevant for disposal of this revision petition, in brief, was that on 30.06.2004 the injured, Amir Hussain was proceeding to his house after attending a meeting. When he reached near the house of the petitioner, Jalaluddin, the present petitioners alongwith some other mounted assault on him and thereby caused serious injuries. An FIR was lodged by the father of the injured, on the basis of which the police registered Dhing P.S. Case No. 101/2004 and on completion of the investigation laid charge sheet against the revision petitioners under Sections 341/ 294/ 323/ 324/ 34 IPC.
4. The learned Judicial Magistrate framed charges against the petitioners under Sections 323/ 341/324 IPC read with Section 34 IPC to which they pleaded not guilty. Ten witnesses were examined by the prosecution to establish the charges and on appreciation of the evidence, the learned Judicial Magistrate convicted the petitioners under Sections 341/ 294/ 323/ 324/ 34 and awarded sentence, as has been indicated above. On appeal, the learned Sessions Judge dismissed the appeal thereby upheld and confirmed the conviction and sentence of the petitioners. Hence, the present revision petition. The petitioner, Jalaluddin died during pendency of revision petition and as such at present only the petitioners, Md. Jamaluddin and Md. Abdul Khaleque are before this court.
5. The learned counsel for the petitioners, Mr. Manas Sarania submits, that there was no materials on record to attract the provision of Section 34 IPC and as such the learned trial court as well as the appellate court fell in grave error by convicting all the petitioners for all the offences with the aid of Section 34 IPC inasmuch as the common intention of all the petitioners was totally absent. Further contention of Mr. Sarania is that the oral testimonies of Page No.# 3/7 the witnesses were inconsistent with the previous statement and there has been a lot of improvement and embellishment in the oral testimony and the weapons of assault was also not seized, but the learned trial court failed to appreciate the evidence in its proper perspective and erroneously recorded the conviction of the petitioners, though the prosecution could not prove the charges beyond all reasonable doubt.
6. The learned Addl. Public Prosecutor submits that this being a revision petition against the concurrent finding of facts by the two courts, there is no scope for re-appreciation of the evidence. The judgment and order has not suffered from any illegality or impropriety calling for any interference of this revisional court, submits learned Addl. Public Prosecutor.
7. There is no quarrel with the broad proposition of law that unless the concurrent finding of facts suffers from perversity or blatant illegality causing miscarriage of justice, revisional court is not permitted to re-appreciate the evidence to substitute it's own view for the view of the courts below on concurrent finding of facts. The Apex Court in State of Karnataka Vs. Appa Balu Ingale reported in AIR 1993 SC 1126 dealing with the scope of revisional jurisdiction observed that when the trial court and the appellate court on an appreciation of the evidence reached the concurrent finding that the charge against the accused was proved beyond reasonable doubt, the High Court would not interfere with the concurrent finding of the two courts below by re-appreciating the evidence in its revisional jurisdiction. In State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, AIR 1999 SC 981, the Apex Court observed that revisional power of the High Court u/s 401 CrPC cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same, when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless glaring features are brought to the notice of the High Court, which would otherwise tantamount to gross miscarriage of justice. Thus, the revisional court has got its own limitation.
8. The Apex Court in State of Maharashtra -Vs.--Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659 observed that "The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section Page No.# 4/7 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power. Keeping in view the above proposition in mind, let us have a look at the evidence on record.
9. The injured Amir Hussain was examined as PW-7. The PW-7 categorically deposed that on the date of occurrence when he was coming home from the house of one Rahim Uddin and reached near the house of the accused Jalal Uddin (since deceased), the accused Jallal, Zamal, Kaleque, Rohima Khatun and others assaulted him with lathi, posa etc. He also stated that Jalal hit him with lathi and Zamal hit him with a 'posa' causing injury on his leg. When he tried to resist the accused Zamal, the accused Abdul Khaleque assaulted him with a lathi from backside.
10. PW-2, Sahidul Islam, who was an eye witness to the occurrence, stated that he was proceeding to Panbari along with the injured and when they reached near the house of accused Jalal Uddin (since deceased), Jallal was disposing trashes. Having seen them, Jalal had some words with the injured (PW-7) and thereafter PW-7 started running being chased by Jalal. He further stated that he left the place of occurrence and later on, when he came back along with others, he had seen Jalal and Zamal assaulting PW-7 with a lathi. However, during cross-examination, he admitted that he did not see the occurrence of assault. What I find is that while discussing the evidence, both the courts below did not take into account the evidence of this witness in cross, that he in fact, admitted to have not seen the occurrence of assault.
11. PW-3, Ramzan Ali stated that initially Jalal assaulted Amir (PW-7) with a lathi. He also Page No.# 5/7 stated that Zamal assaulted PW-7 with a 'posa' and consequently he sustained cut injury on his leg. This witness also stated that the PW-7 was running being chased by Jalal. According to PW-4, he had seen Jalal assaulting the PW-7. He also stated to have seen Khaleque assaulting PW-7 with lathi and Zamal hitting him with a 'posa'.
12. PW-1 & PW-5 were not the eye witnesses. PW-6 stated that when the PW-7, Amir Hussain reached near the house of Jalal, Jalal came out from his house and assaulted him with a lathi and Amir started running being chased by Jalal. PW-6 also stated that later on Zamal Uddin assaulted Amir with a 'posa'. This witness also implicated Kaleque.
13. The doctor, who attended the injured was examined as PW-8. According to PW-8, he found a bruise over the scalp, hematoma and acymosis over the right arm-pit above the elbow joint, acymosis over the right scalp, acymosis over the right scalp, acymosis over the back, below the right scapula, one cut injury of ½'' x ¼" over the right leg, one circular shape abrasion over the posterior lateral aspect of the left thigh and a semi circular abrasion with a ½" piercing injury on the left knee joint. According to the doctor, injury Nos. 6 to 8 being the cut and piercing injuries were caused by sharp weapon and rest of the injuries were caused by blunt weapon and all the injuries were stated to be simple in nature.
14. From the evidence of PW-2, who was an eye witness to the occurrence and accompanied the injured (PW-7), it is apparent that initially other two petitioners were not present at the place of occurrence and there was some altercation between the petitioner Jalal (since deceased) and the injured and thereafter Jalal chased the victim and also assaulted him with lathi. All the witnesses have stated that Zamal inflicted injury to PW-7 with a 'posa', a sharp pointed weapon. Apparently Zamal and Abdul Khaleque were not present at the place of occurrence, when initially PW-7 and Jalal had altercation and the PW-7 started running being chased by Jalal. Later on Abdul Khaleque and Zamal came and assaulted Amir, who was running from the place of occurrence on being chased by Jalal. From the above evidence that initially the occurrence took place between Jalal (since deceased) and the injured (PW-7) and the accused Zamal and Abdul Khaleque came later on, it is difficult to hold that there was any prior meeting of mind of all the three petitioners. Apparently no other evidence was brought on record to show that there was any prior meeting of minds of all the three accused to inflict injury to the PW-7 or they had any common intention to assault the Page No.# 6/7 PW-7.
15. In order to invoke the provision u/s 34 IPC, prosecution must prove that there was common intention in the sense of prior meeting of minds of all the accused persons and that all of them participated in the offence in some form or other. Unless the prosecution proves that all the accused persons shared common intention and committed the offence in furtherance of such common intention, one cannot be convicted with the aid of Section 34 IPC attributing constructive liability. Even if there may be similar intention of all the accused persons, which shall not be sufficient to attract the provision of Section 34 IPC, inasmuch as there is vast difference between common intention and similar intention of different persons. In the present case, evidently other petitioners were not present when the occurrence started and it was only Jalal with whom the injured had altercation, who chased the PW-7 and assaulted him. Later on the other two accused came and assaulted. Above evidence is not sufficient to prove that all the petitioners shared any common intention. Therefore, I find substance in the submission of the learned counsel for the petitioner that there was no common intention and as such, the assailants shall be liable for their individual act only.
16. The medical evidence clearly shows that two sharp injuries were sustained by the injured and rest of the injuries were simple caused by blunt object. The oral testimony of PW- 3, PW-4, PW-6 & PW-7 shows that the cut injuries were caused by Zamal and not by other accused. Therefore, except Zamal, others could not have been convicted u/s 324 IPC, in absence of material to invoke the provision of Section 34 IPC, and as such, the conviction of the petitioner Abdul Khaleque u/s 324 IPC with the aid of Section 34 IPC cannot be maintained. However, both the courts below failed to take into account this vital aspect of the matter. Be that as it may, the evidence and materials, as indicated above, makes it abundantly clear that there were overwhelming evidence to establish the involvement of the petitioners in commission of the offence in their individual capacity, and as such, conviction of the petitioner Abdul Khaleque u/s 323 IPC and Section 341 IPC calls for no interference. Accordingly, the conviction of the petitioner Abdul Khaleque u/s 341 and 323 IPC and the conviction of the petitioner Zamal u/s 324/341 IPC are hereby upheld.
17. Learned counsel for the petitioners contends that Zamal Uddin is an old man of 68 years of age and the petitioners have suffered a lot because of facing protracted trial for the Page No.# 7/7 last 16 years, and as such, prays for showing some leniency in respect of sentence. Due consideration is given to the submission.
18. Having regard to the fact and circumstances, under which the occurrence took place and that the petitioners have already suffered a lot because of protracted trial for the last 16 years, this court is of the view that no fruitful purpose may be served by sending the petitioners to jail at this stage for few months, and as such, the sentence awarded to the petitioners by the learned appellate court as well as the trial court deserves little modification. Accordingly, the sentence is modified by reducing the sentence to fine only. Accordingly, both the petitioners Zamal & Abdul Khaleque are sentenced to pay fine of Rs. 1,000/- each u/s 341 IPC and in default they shall undergo simple imprisonment for 1 (one) month. The petitioner Abdul Khaleque is further sentenced to pay fine of Rs.1,000/- u/s 323 IPC, in default, he shall undergo simple imprisonment for 3 (three) months. The petitioner Zamal is sentenced to pay fine of Rs. 20,000/- (Rupees Twenty thousand) and in default to simple imprisonment for six months.
19. With the above modification in the sentence the revision petition is allowed to the extent indicated above.
20. The petitioners are directed to surrender before the learned trial court within three months to pay fine or to serve out the default sentence. On realization, the entire fine amount shall be paid to the injured as compensation.
21. Revision petition accordingly stands disposed of.
22. Send back the record along with a copy of this order.
JUDGE Comparing Assistant