THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM) Criminal Appeal No. 31 of 2013

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1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM) Criminal Appeal No. 31 of 2013 Appellant/Accused. Abdul Khalique Barbhuiya & two others. Respondent. The State of Assam Criminal Appeal No. 290 of 2012 Appellant/Accused. Hussain Ahmed Hussain Ahmed & another. Respondent. The State of Assam BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE KALYAN RAI SURANA For the Appellant/Accused (incrl.appeal No.31/2013) Mr.Z Alam, Mr. MJ Quadir, Mr. ND Sarma and Mr. SY Ahmed, learned counsel, For the Appellant/Accused Mr.BK Mahajan, (In Crl.Appeal No.290/2012) Mr.AM Barbhuiya, Mr. AMS Mazumdar and Mr. NJ Das, learned counsel, For the Respondents Mr. M Phukan, learned Additional Public Prosecutor, Assam Date of hearing Date of judgment JUDGMENT AND ORDER (K.R.Surana, J) The appellants Abdul Khalique Moina Mia, Nazrul Islam Barbhuiya, Abul Aklu Akul, Hussain Ahmed Hussain Ahmed and Fariz Uddin Page 1 of 12

2 Fariz Uddin have been convicted u/s 302 r/w section 149 IPC and sentenced to undergo imprisonment for life with default stipulations and also to undergo Rigorous Imprisonment for three (3) years with default stipulations for committing the offence u/s 326/149 IPC and also sentenced to undergo Rigorous Imprisonment for two (2) years with default stipulations for committing offence u/s 148/149 IPC. 2. The victims of the incident were Habibur Rahman, (36 years), Mohibur Rahman aged, (38 years) and Abedur Rahman, (35 years). Habibur and Mohibur died, whereas Abedur sustained grievous injuries. 3. According to the prosecution case, One Akbor Mia was the absolute owner of a plot of land measuring about 5 Bighas covered under Dag No. 212 of 2 nd R.S.Patta No. 24 under village Ujankupa and having absolute possession thereof. He had two sons namely Nasib Ali and Mosod Ali. Nasib Ali is the father of Hussain Ahmed and Hasan and his brother-mosod Ali had three daughters-khudeja Bibi, Fatima Bibiand Halima Bibi. Faizur, Habibur, Mahibur, Toyobur and Abedur are the sons of KhudejaBibi. 4. Hussain, Hassan, Faizur, Habibur, Mahibur, Tayabur and Abedur inherited and possessed the lands of Akbor Mia and they had possessed the same by cultivating the lands and enjoying the usufructs thereof, by mutual consent through an oral amicable family settlement, which took place between Nasib Ali and Mosod Ali-even before their births. Hussain and Hassan inherited and possessed their share of land towards the eastern side of the P.W.D Road in Dag No By way of the same said family settlement, Faizur, Habibur, Mahibur, Toyobur and Abedur possessed the Northern portion whereas Hussain and Hassan possessed the Southern portion of the land. But, this plot of land became the apple of discord between the two families. Page 2 of 12

3 6. On 5/8/2001 at about 10a.m. Abdul Moina Mia, Nazrul Islam Barbhuyan and Akul (Appellants in Criminal Appeal No. 31/2003) and Hussain Ahmed Ahmed and FarizUddin Farizuddin (Appellants in Criminal Appeal No. 290/2012) along with some other persons including one Kuti Mia(a juvenile-in-conflict with law) started removing the southern border ali ( small earthen embankment) over the land possessed by Habibur Rahman and they were merging his lands with their lands by erecting bamboo fencing. Seeing this Habibur, who was working in the fields, ran towards them and tried to stop them. The appellants obstructed him and soon a quarrel took place amongst them. Finding him alone, they surrounded Habibur and the hue and cry became louder. 7. At that time, the brothers of Habibur namely Faizur Rahman Choudhury (PW-1), Abedur Rahman Choudhury (PW-2), Nurul Islam Choudhury (PW-3), Tayabur Rahman Choudhury (PW-4) and Motiur Rahman Choudhury (PW-5) were working in the fields. They heard the hue and cry towards the field of Habibur and turning towards the field where Habibur was working, they saw the appellants quarrelling with Habibur. Suddenly, Habibur was assaulted by the appellants and others with some lethal weapons such as dao, spear etc. which they were allegedly hiding in the field and he fell down on the ground. Seeing him being so assaulted, his brother Mahibur Rahman came forward to rescue and another brother of Habibur, Md. Abidur followed suit. But, they were also hacked with dao by the assailants and as a result the trio sustained severe cut injuries. When the eye witnesses raised an alarm, the assailants fled from the spot. The injured were taken to Hailakandi Civil Hospital where Mahibur was declared brought dead while the other two injured were shifted to Silchar Medical College Hospital. Habibur died en-route. Abidur was discharged from Page 3 of 12

4 hospital later on after treating him as an indoor patient for about 15 days. 8. Faizur (PW-1) lodged the FIR-Ext-1-before Hailakandi Police Station which was registered as Hailakandi P.S.case No. 180/2001 u/s 147/148/326/302/149 IPC. Amalendu Chanda (PW-9) was the then sub-inspector of Police in that station on that particular day. He immediately rushed to the place of occurrence, recorded statements of witnesses, drew sketch map-ext-5-and also instructed the In-charge of Hospital T.U.P (Md. A.U.Laskar) to get the inquest done over the dead bodies of Habibur and Mahibur. Accordingly, inquest over Habibur was done in presence of Mrinal Kanti Roy (PW-11) and he submitted Ext-7-inquest report. It may be mentioned herein that he also found a cut injury at the back of Habibur. During investigation, Amalendu got transferred and Nikhil Chandra Deb (PW-10) took over investigation. He arrested the accused persons and sent them for trial. On completion of investigation he submitted charge sheet vide Ext-6 against the accused persons. 9. During trial, all the appellants abjured their guilt. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellants of both the appeals as aforesaid. The trial court also disbelieved the defence plea of the appellants more specifically, the plea of alibi taken by Nazrul, that he was on house guard duty at Panchagram outpost at the time of occurrence. Hence, this appeal. 10. After hearing the learned counsel for the appellants and Additional Public Prosecutor, we are of the considered view that Criminal Appeal No.31/2013 deserves to be partly allowed, whereas Criminal Appeal No. 290/2012 deserves to be dismissed. Page 4 of 12

5 11. In the incident, as mentioned above Habibur and Mahibur died, whereas Abidur sustained grievous injuries. 12. Dr.Mrinal Kanti Talukdar (Pw6) who examined Abidur, opined in his injury report Ext-2, that Abidur sustained one incised wound over left cheek extending from left lobule to the angle of mandible (muscle deep) size-9cm x 2 cm x 2 cm.,the X-Ray finding of which is comminuted fracture of angle of Ranus of left mandible. He also found another injury, simple in nature, where tenderness over lumber region was found. According to him, the first injury was grievous in nature caused by sharp weapon whereas the second injury was caused by blunt weapon. 13. Dr.Guanjt Das (PW-7) and Dr.Khairum Jaman Choudhury (PW-8) conducted autopsy over the bodies of Habibur and Mahibur respectively. 14. Dr.Gunajit found three injuries on Habibur as reported and proved in Ext-3. First, one incised injury with gaping over left cheek continuing upto left side of the neck (15 cm x 2 cm) cutting all structures including mandible bone, stern mastoid muscle and carotid vessels. The wound was horizontally placed 3 cm below the ear lobule and the margin was found clean cut. Secondly, one incised wound over the left forearm cutting the forearm into two halves longitudinally starting from junction of middle ring finger upto 4 cm below elbow joint. All structures cut cleanly and forearm bones are one on either half of wound. Margins were found clean cut. Thirdly, one incised injury over ventral aspect of right elbow with bevelling and placed horizontally cutting muscles and vessels but not the bone (6cm x 2cm). Bevelled flap with subcutaneous and muscle tissue reflected from superior to inferior side. The common thing for all the injuries is ante-mortem blood clot firmly adherent to the margin of wounds. In cranium and spinal canal, mandible incised and mode into pieces under injury no.1.fisceral organs were found plea and rest of the organs of the body found Page 5 of 12

6 healthy. He opined that the cause of death was hemorrhage and shock resulting from the injuries sustained which are ante-mortem and homicidal in nature. During his cross-examination, he deposed that he did not find any injury at the back. 15. Similarly, Dr.Choudhury (PW-8) found four injuries on Mahibur. He reported in Ext-4 that Mahibur sustained one raw area of size 8 cm x 5 cm over the right parietal region of the scalp. The margins are clean and area was devoid of scalp tissues. In the middle of this row area the outer table of right parietal bone was slashed off from the scalp. The size of outer table missing was 4 cm x 3 cm. Secondly, one incised wound of size 10 cm x 5 cm x 3 cm seen over the right shoulder running anterpostererlymid way between the lip of the right shoulder and base of the right neck cutting half the breadth of the right clavicle. The third injury was also an incised wound of size 6 cm x 5 cm x 4 cm seen over the dorsal of the right lower forearm running obliquely from lateral to lower medial aspect ending 4 cm above the right wrist joint. Fourthly, an area of 16 cm x 8 cm on the exterior aspect of the left forearm barred of all the tissues exposing bones and 145 gms. of muscles and tissues is avulsed off from the bones and found hanging near the left elbow. On opening the scalp, right extra dural space was found full of liquid blood amounting to 140 ml. The right middle marginal aspect was found to be ruptured in region where artery joints the durameter from the groove inside the right parietal bone. Right cerebral hemisphere was found to be depressed by extra dural blood. He opined that the injuries were ante mortem in nature and the injuries were caused by heavy blows by sharp cutting weapon over right parietal region. Rapture in the middle manigal artery inside the skull causing rapid and massive extra dural hemorrhage rapid loss of consciousness and untimely death. According to him, Mahibur died due to extra dural hemorrhage following head injury caused by sharp weapon. Page 6 of 12

7 16. The medical evidence of the above witnesses is supported by the ocular evidences of all the eye witnesses namely Faizur, Abidur, Nurul, Tayabur and Matiur, who have equivocally deposed that they saw Nazrul inflicting a spear blow at the back of Habibur and Habibur fell down on the ground. But, during argument it has been clarified that Nazrul was not holding a spear as such and the object by which he assaulted Habibur was only a bamboo stick (huja) with pointed ends used for the purpose of carrying haystacks. Although, Nurul did not specifically depose that he saw Nazrul inflicting a blow on Habibur with a huja, but he categorically deposed that he saw someone in the mob giving that blow first and also saw Habibur falling on the ground. On the other hand, other four eye witnesses have clearly identified Nazrul while giving the huja blow to Habibur first. Therefore, it is clear from the evidence that it is Nazrul, who gave the first blow to Habibur from backside as a result of which he fell down on the ground. 17. Abidur, who was also injured, has categorically deposed that he saw Farizuddin giving a dao blow to him. Faizur, Nurul, Tayabur and Matiur corroborated the evidence of Abidur. Faizur deposed that Nazrul first gave a huja blow at the back of Habibur and when he fell down, Fariz hacked him with a dao. At this Faizur raised he and cry and Tayabur, Nasir, Abedur and Nurul came forward for help and then Hussain Butai gave a dao blow to Mohibur first. Then, Fariz hacked him with a dao and other witnesses gave blows with lathis and daos. He also deposed that Kuti Mia gave a dao blow to Abedur spanning his cheek and head. In his cross-examination, Faizur categorically deposed that Nazrul first struck him with a huja which, he kept hiding under the earth. Nurul, Tayabur and Motiur corroborated the evidence of Faizur on all material particulars. It is the categorical evidence of Abidur that when Habibur fell down, Fariz hacked him with a dao and when Mohibur came for help, Hussain@ Butai gave a dao blow on his head first and then Hassan@ Fesai hacked him and Habibur with a Page 7 of 12

8 dao. Then, Nene and Aklu hit Abidur on his back with sticks. Being so beaten, when he fell down on the ground, Kuti Mohi hacked him with a dao below his ear cutting his cheek and teeth. According to him, both Aklu and Nene also beat Nurul with lathis. 18. Nurul had also deposed that he saw a heated argument between Habibur and Hussain, Hassan, Kuti Mia and others and also saw Foriz, Hussain and Kuti Mia being armed with dao. Suddenly, someone struck Habibur from back with a huja. When he fell down, Foriz Uddin hacked him in his left cheek and neck. Then, all the appellants surrounded him and started to assault him with dao and lathis. Seeing this, when Mohibur and Abidur came for help, Hussain dealt a dao blow to Mahibur on his head and when he fell down the other appellants assaulted him. He saw Farizuddin giving dao blow on the hand of Habibur. Nurul, could master courage and hold the hand of Fariz and both of them fell down on the ground and the appellants beat him too, with lathis. But he could not categorically name as to who beat him. He also named Nasir, Tayabur, Faizur and Matiur being present at the place of occurrence, who also witnessed the occurrence. 19. Tayabur deposed exactly similar to Nurul and he saw Nazrul giving the huja blow to Habibur from backside and Farizuddin giving a dao blow on the cheek of Habibur when he fell down. He also saw Hussain giving dao blow on the head of Mohibur and when he fell down on the ground Moina and Abul gave lathi blows and also saw Hussain, Hassan and Moinuddin giving dao blows to Habibur. He had specifically deposed that when Abidur came for help, he was assaulted with lathis by Moina and Abul whereas; Kuti dealt a dao blow on the left cheek of Abidur. During his cross examination he deposed that Nazrul took out a huja from under the mud below and the spear penetrated about 3/4 inches on the person of Habibur. When he fell down, Nazrul let the huja off his hand. Page 8 of 12

9 20. Matiur also saw Nazrul giving the spear (spear) blow to Habibur from behind at the instruction of Hussain and also saw Butai, Nene, Moina and Abul giving him blows with lathis and daos. He also saw Butai giving a dao blow on the head on Mohibur and Hassan, Kuti, Foriz, Nazrul,Abul and Moina giving him dao and lathi blows. It is his categorical deposition that Kuti dealt a dao blow to Abidur when he came for help and Abidur fell on the ground being so assaulted. During his cross-examination, he deposed that the huja was kept concealed under the soil at the place of occurrence and the huja penetrated about 3/4 inches into the person of Habibur. Thereafter, it was pulled out from Habibur and he fell down on the ground. 21. All the abovenamed eye witnesses have corroborated the evidence of one another on material particulars and they did not shake during their cross examination. All the eye witnesses have deposed that Farizuddin hacked Habibur with a dao whereas Farizuddin and Butai dealt a dao blow on Mahibur. Abidur also deposed that Kuti Mia dealt a dao blow on Abidur Rahman. This piece of evidence is also supported by Abidur, Nurul, Tayabur and Motiur. However, all the witnesses have deposed that Moina Mia and Abul were armed with lathis. Faizur deposed that both Akul and Moina gave lathi blows and this evidence is supported by Abidur, who categorically deposed that they dealt lathi blows to Mohibul and Nurul Islam. Tayabur corroborated the evidence to that effect too. He also deposed that Moina hit Mohibur with lathi. Matiur has also corroborated the evidence of the other eye witnesses. 22. In view of the above, it can be safely held that Nazrul first inflicted a blow to Habibur from backside with a huja which was kept concealed under the mud in the field. Being so injured, when Habibur fell down on the ground, Farizuddin hacked him with a dao. Seeing this, when Mahibur approached to save his brother, Hussain Butai hacked him with dao and Farizuddin also Page 9 of 12

10 hacked him with a dao whereas others beat him with lathis. Though it is clear from the evidence that Akul and Moina Abdul Khalique Barbhuyan gave blows with lathis to Mahibur and Habibur, but in the post mortem reports, no such injury was found. Besides, in the injury report of Abidur, only one such simple injury was found which was caused by blunt object. Therefore, it can at best be held that those were inflicted by Abul and Moina. 23. The appellants took a defense plea that the assault was made without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the appellants having taken undue advantage or acted in a cruel or unusual manner since the deceased and his brothers tried to dispossess the appellants from their lands and in a move to do so, they illegally entered into the lands of the appellants being armed with lethal weapons and assaulted the appellants. As a result, being so provoked, the occurrence took place. And thus they come within the ambit of Exception 4 of Section 300 of Indian Penal Code. It has also been the plea that in fact, Nazrul was not present at the place of occurrence and he was on duty in a police outpost and as such the finding of the trial court is without any basis. In support of their arguments the learned counsel for the appellants relied on a catena of decisions reported in AIR 1994 SC 1598 (State of Punjab Vs. Jagjit Singh), AIR 1998 SC 2820 (Pandit Ram Prakash Sharma vs. Khairati Lal and another), (2006) 4 SCC 653 (Sandhya Jadav Vs. State of Maharashtra), (2008) 11 SCC 698( Iqbal Singh vs. State of Punjab), (2012) 5 SCC 530 (Arjun Vs. State of Maharashtra) and (2015) 4 SCC 363 (P.G.Rathod and another vs. State of Gujarat). 24. We are unable to agree with the aforesaid submissions. It is the evidence of all the eye witnesses that the appellants were trying to raise some bamboo fencing on the border of the lands of Habibur by destroying the boundary ali when Habibur obstructed. Page 10 of 12

11 At that time he was alone and the appellants assaulted him by surrounding him. When his brothers came for help, they were also assaulted brutally. Neither he nor his brothers was armed with any weapon. There is hardly any evidence that they attacked the appellants with weapons and it is also not the case of the appellants that they sustained some injuries due to the fight. Besides, there is no evidence at all that there was a fight between two groups giving rise to a situation compelling the appellants to cause such injuries to the victims. Rather, it is crystal clear that the appellants assaulted the victims with a premeditated manner and took undue advantage of the situation and acted cruelly and in an unusual manner. It is the evidence that the appellants surrounded the victims and gave blows with lethal weapons on the vital organ of their bodies such as head, neck, cheek, etc. therefore, their case does not come within the purview of Exception 4 of Section 300 IPC. So far the plea of alibi is concerned, although, DW-1 Surat Ali Sheikh deposed that Nazrul was on home guard duty on that day, but he admitted in his cross-examination that he was on duty till 8 a.m. and no attendance was called for him till 8 p.m. and as such it is very likely that after committing the offence, Nazrul came back to his barrack and hence the evidence of Surat Ali is of no help to Nazrul. It was very much probable that he went to the place of occurrence after being discharged from duties at 8 a.m. and after committing the offence returned to the barrack for taking the plea of alibi. 25. Although, all the witnesses deposed that he assaulted Habibur with a huja, but no such penetrating injury was seen or marked by the doctor conducting autopsy. Penetrating injury may not be caused due to blow by a huja on the back, but the same may be sufficient to cause injury and make Habibur fall on the ground. However, Mrinal Kanti Roy (PW-11) deposed that he found one injury at the back of Habibur. The evidence of Mrinal Kanti Roy is reliable as the same is corroborated by all the eye witnesses. Page 11 of 12

12 The evidence of all the eye witnesses and the inquest witness cannot be ruled out entirely only because the same is not supported by medical evidence. It is the golden principle of criminal jurisprudence that the ocular evidence although not supported by medical evidence should be given weightage over the medical evidence, if the ocular evidence is otherwise trustworthy, reliable and consistent drawing the confidence of the court. For the aforesaid reasons, the decisions cited by the appellants are found to be of no help for their rescue. Thus, it can be safely held that Nazrul and Farizuddin gave the lethal blows to Habibur with deadly weapons i.e. huja and dao respectively and both Hussain Ahmed and Farizuddin gave lethal blows with dao to Mahibur and as such it is held that Nazrul, Farizuddin and Hussain were the perpetrators of the crime. Therefore, the findings of the trial court against all of them stand upheld whereas Abul and Moina are held not guilty as charged and are acquitted and released forthwith, if not wanted in any other case. 26. Accordingly, Criminal Appeal No.31/2013 is partly allowed to the extent as indicated herein above, whereas Criminal Appeal No. 290/2012 stands dismissed. JUDGE CHIEF JUSTICE skd/- Page 12 of 12

IN THE GAUHATI HIGH COURT

IN THE GAUHATI HIGH COURT (THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Criminal Appeal (J) No. 119 of 2015 Md. Jamaluddin & Another -Versus- The State of Assam & Another Appellants