THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI (CRIMINAL APPELLATE JURISDICTION) Criminal Appeal (J) No.57 of 2015 1. Asuruddin 2. Ayub Ali 3. Rahela Khatun 4. Faizal Haque Appellants -Versus- The State of Assam Respondent. BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE N. CHAUDHURY For the appellants : For the respondent : Mr. R. M. Coudhury. Amicus Curiae. Ms. Shamima Jahan, Addl. Public Prosecutor, Assam. Date of hearing : 30.08.2016. Date of Judgment : 30.08.2016. JUDGMENT & ORDER (N. Chaudhury, J.) Four appellants have preferred this appeal against the judgment and order of conviction dated 09.04.2015 passed by learned Additional Sessions Judge, Bajali, in Sessions Case No.121/2010 whereby they were convicted and sentenced to suffer rigorous imprisonment for life and to Crl.A.(J) No.57/ 2015 Page 1 of 11
pay a fine of Rs.5000/- each, in default, to suffer simple imprisonment for a further period of three months. 2. The prosecution case is that one Tamser Ali as informant lodged an ejahar with Officer-in-charge of Bhabanipur Police Outpost on 05.08.2009 stating that one Ayub Ali and one Bakkar Ali had stolen a mobile phone of Md. Samsul Haque in regard to which his brother Kaser Ali assured the villagers that he would settle the dispute on 04.08.2009 at 8.00 a.m. For this the seven accused persons named in the ejahar threatened his brother Kaser Ali to finish his life. Thereafter, at 11.00 p.m. on 03.08.2009 when his brother Kaser Ali along with few others were returning home Asuruddin and Ayub Ali dealt blow on him by khukri into his chest seriously injuring him. On being taken to Barpeta Civil Hospital he was declared dead. This ejahar contained names of as many as seven accused persons. 3. Upon receipt of this ejahar G.D.Entry No.76 dated 04.08.2009 was recorded and upon the information being forwarded to Barpeta Police Station, Barpeta Police Station Case No.782/2009 under Sections 302/34 of the Indian Penal Code was registered. 4. In course of investigation Sub-Inspector of Police Sanjit Kumar Roy visited the place of occurrence, arranged for inquest and post mortem of the dead body and after recording the statements of the witnesses and upon receipt of the post mortem report submitted charge-sheet Crl.A.(J) No.57/ 2015 Page 2 of 11
against four accused persons on 23.12.2009 vide Chargesheet No.573/09. These four charge-sheeted persons are (1) Asruddin, son of Noser Ali, (2) Rohela Khatun wife of Noser Ali, (3) Ayub Ali, son of Ali Hussain and (4) Foizol Hoque, son of Late Abdul Goni all of village Pota. 5. The learned Sub-Divisional Judicial Magistrate (M), Bajali, committed the case to the Court of Sessions on 15.09.2010 and thereupon Sessions Case No.121/2010 of the Court of learned Additional Sessions Judge (FTC), Barpeta, was registered. Learned Sessions Judge framed charges under Sections 302/34 of the Indian Penal Code against all the accused persons. The charges were read over to them to which they pleaded not guilty and claimed to be tried. 6. In course of trial prosecution examined ten witnesses including the investigating officer and the medical officer. Having considered the evidence led by the prosecution the learned Sessions Judge passed the impugned judgment and order on 09.04.2015 convicting all the accused persons under Section 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and also to pay a fine of Rs.5000/- each, in default, to suffer simple imprisonment for one month more. This judgment has been called in question in the present appeal by the four convicted accused persons. 7. We have heard Mr. R. M. Choudhury, learned Amicus Curiae for the appellants and Ms. Shamima Jahan, learned Additional Public Crl.A.(J) No.57/ 2015 Page 3 of 11
Prosecutor, Assam for the respondent. We have also perused the records including the statements of the witnesses under Section 161 of the Code of Criminal Procedure. 8. PW 1, Tomser Ali, is the informant. He did not see the incident but submitted the ejahar having come to know from others about the injury of his brother Kaser Ali who succumbed to the injuries. He mentioned in course of his deposition that Ayub Ali and Asaruddin assaulted his younger brother Kaser Ali on the road in between the houses of Samsul and Anowar. 9. PW 2, Jul Hussain, stated that before the bichar was held Anowar Hussain and Abul Kalam started fighting and there was altercation among Ayub Ali, Fazal Ali, Nazar Ali, Asaruddin, Rohila Khatun and Faizal Haque. Because of this the bichar was postponed to the next day. After adjournment of the bichar Nizamuddin and Samsul Haque were coming along the road. Kaser Ali was also going ahead of them. At that moment he saw Kaser Ali came running towards them and raised a hue and cry. He saw Ayub Ali, Asaruddin, Rahila Khatun and Faizal Haque were also following Kaser Ali running. But having seen the deponent and others they fled away. Then he asked Kaser Ali about the matter. He disclosed that Ayub had dealt him a blow on his face with fist, Faizal pressed his neck, Rahila Khatun grabbed him from behind and Asaruddin stabbed at his abdomen by a dagger. He noticed injury in Crl.A.(J) No.57/ 2015 Page 4 of 11
the abdomen of Kaser Ali. Blood was oozing out. He tied the injury with the gamosa which was with the injured Kaser Ali and then with the help of Nizam and Samsul Ali took the victim to Barpeta Civil Hospital. Doctor declared him dead. 10. PW 3, Nizamuddin, deposed on oath that accused Asaruddin is his grandson. Faizal Haque is the son of his maternal uncle while Rahila and Ayub are his niece and nephew, respectively. Deceased Kaser Ali was son of his maternal uncle. On the fateful night after the bichar was over he along with Gul Hussain (PW 2) and Samsul Haque (PW 4) were coming along the road. Kaser Ali was going ahead of them. When they reached in front of Anowar s house, Kaser reached Habib s house. They saw Kaser. At that time all on a sudden Kaser came running towards them shouting I am being killed, I am being killed. After Kaser had reached near them he told them that Rohila, Ayub, Asaruddin and Faizal Haque came to kill him. Asaruddin stabbed him with a dagger, Faizal pressed his neck, Rohila held him in the waist and Ayub gave a blow on his cheek with fist. The accused persons, who were following Kaser, fled away having seen them. He noted the injury on the person of Kaser. Blood was oozing out. They tied Kaser s injury with gamosa and took him to Barpeta Civil Hospital by a vehicle. Doctor declared him dead. Exhibit-3 is the inquest report wherein Exhibit-3(1) is his signature. Magistrate recorded his statement vide Exhibit-4 wherein Exhibits- 4(1), 4(2) and 4(3) are his signatures. Crl.A.(J) No.57/ 2015 Page 5 of 11
11. PW 4, Samsul Haque, deposed that after the bichar was over, Nizam, Julhas Ali and he started going through the village road. Kaser Ali was going ahead of them. When Kaser reached Habibur s house, he came running towards them shouting I am being assaulted, I am being assaulted. PW 4 saw accused Ayub Ali, Faizal, Rahela and Asruddin were coming in a run following Kaser. Kaser told them that Ayub had hacked him, while Rahela held him by neck and Asruddin stabbed him in the abdomen. Faizal held his neck. He found blood coming out from the abdomen of Kaser. They tied his abdomen with a gamosa and took him to Barpeta Civil Hospital for treatment. Having seen Kaser near them the accused came charging towards Kaser but then fled away. They stopped a marriage vehicle and took the victim to Barpeta Civil Hospital. In course of cross-examination he stated that he did not see the incident but Kaser told him that he was stabbed by Asaruddin. 12. PW 5, Mohammad Ali, stated that deceased Kaser Ali was his father-in-law. He did not see any incident but he was informed over telephone by someone that his father-in-law was stabbed and died. He went to hospital and found Jul Hussain (PW 2), Abdul Haque and others. 13. PW 6, Ayub Ali (Nobi), stated that on the night of occurrence when he was at home he was woken up by Moin Uddin and Mazad Ali. Moinuddin was armed with a khukri and they asked him to keep the Crl.A.(J) No.57/ 2015 Page 6 of 11
khukri at his home and disclosed that someone had killed Kaser with that khukri. He did not keep it and asked them to give it to police. Police subsequently seized it. 14. PW 7, Md. Jehirul Islam Haque, stated that on the night of occurrence at 11.00 p.m. he was standing near the mosque when he heard a hue and cry towards Palla river. He heard someone crying I am being assaulted, I am being assaulted. He ran there accompanied by Mohammad, Rashidul Islam and Mohibul towards the river and saw Gulhas, Jul Hussain, Nizam and Samsul were pouring water on Kaser s head. They said that Asaruddin, Ayub, Faizal and his mother Rohila Khatun had injured Kaser with khukri. He found the victim on the ground with stab injury at his chest. 15. PW 8, Musstt. Ramisa Begum, is the widow of the deceased. She was not present at the place of occurrence. She was at home. The neighbours woke her up and told that her husband was killed. She went to the river and found her husband in injured condition. She fell unconscious. 16. PW 9, Dr. Bhupesh Choudhury, held post mortem over the dead body and he found the following injuries :- i) Clean cut injury on epigastic region just below the sternum size is (3 x 5cm) deep to thoracic cavity plevering the diaphragm and left lobe of lung. (Digection of injury upwards and left lateral side). Crl.A.(J) No.57/ 2015 Page 7 of 11
ii) Small abression on right side of neck (1 x 1cm). In his opinion death was due to shock and haemorrhage as a result of the injury sustained. 17. PW 10, Sanjit Kumar Rai, is the investigating officer. He stated the course of investigation and about examination of the witnesses. The learned Sessions Judge thereafter examined all the accused persons under Section 313 of the Code of Criminal Procedure when all of them claimed to be innocent. 18. Having heard the learned counsel for the parties and on perusal of the evidence as referred to above it is clear that PW 2, PW 3 and PW 4 have deposed in one tone. All of them stated that they were coming from the bichar and the deceased Kaser Ali was walking ahead of them. When Kaser Ali reached near Habibur s house, all on a sudden he became panicky and came running towards them. They also noted that deceased Kaser Ali was being followed by the four accused persons. PW 4 even went to the extent saying that Asuruddin came and charged Kaser but when he found that others are there he fled away. Then Kaser disclosed them that Asuruddin had stabbed at his abdomen by a dagger, Faizal held at his neck, Ayub gave him a fist blow on his face whereas Rahela held him at waist from behind. All the three witnesses, namely, PW 2 (Jul Hussain), PW 3 (Nizam Uddin) and PW 4 (Samsul Haque) consistently stated that Asuruddin dealt blow with sharp Crl.A.(J) No.57/ 2015 Page 8 of 11
weapon at the abdomen of Kaser Ali. This was disclosed to them by Kaser Ali. All of them noted that these four accused persons were pursuing Kaser Ali from behind but when they came face to face with these witnesses the accused persons fled away. Such deposition of PWs 2, 3 and 4 are in conformity with their statements recorded under Section 164 of the Code of Criminal Procedure by the Magistrate on 31.08.2009 as well as the statements under Section 161 of the Code of Criminal Procedure recorded on 04.08.2009. The statement under Section 161 of the Code of Criminal Procedure was recorded by the investigating officer on the date of occurrence when the PWs 2, 3 and 4 made disclosure about oral dying declaration of Kaser Ali to them. On 31.08.2009 they made similar statements before Magistrate under Section 164 of the Code of Criminal Procedure and even in course of trial they made the same deposition. There is no effective crossexamination by the defence to raise any doubt about the correctness of the statements made by the PWs 2, 3 and 4. If the depositions of PWs 2, 3 and 4 are accepted, in that event, it is clear that it is Asuruddin who inflicted injury at the abdomen of the deceased by a sharp weapon. Accused Rahela Khatun held at his waist from behind, Ayub Ali dealt a blow on his face by fist while Faizal pressed his neck. From the conduct of these accused persons it is clear that while Asuruddin wanted to cause grievous injuries on the person of the deceased, the other three accused persons merely sought to inflict blows on him. This means that other accused persons only assaulted causing simple injury. Prosecution Crl.A.(J) No.57/ 2015 Page 9 of 11
could not furnish any material on record which can go to show that all these four persons had planned together to kill Kaser Ali. There is no evidence whatsoever to hold that there was meeting of minds of all the four accused persons and that all of them were aware that Asuruddin was holding a sharp weapon with him. In the absence of any specific evidence to that effect it is not possible to hold that accused Rahela, Faizal and Ayub were very much aware that accused Asuruddin was carrying a dagger with him and that there was likelihood of using the dagger to kill Kaser. The conducts of these three accused persons merely show that they intended to beat Kaser Ali and not to kill him. It is Asuruddin alone who had a dagger with him and in the absence of specific evidence it cannot be held that he exhorted others also to help him in killing Kaser Ali. On the basis of the materials available on record it can only be held that it is Asuruddin who intended to kill Kaser Ali and he inflicted one stab injury at his abdomen. In the absence of any specific material it cannot be held that all the accused persons had common intention to kill Kaser Ali and so they at best can be held guilty of committing offence under Section 323 of the Indian Penal Code. 19. Accordingly, the impugned judgment and order of conviction is modified. Conviction and sentence of accused/appellant Asuruddin under Section 302 of the Indian Penal Code is maintained. The conviction of accused/appellant Rahela Khatun, Faizal Haque and Ayub Ali is converted into Section 323 of the Indian Penal Code and Crl.A.(J) No.57/ 2015 Page 10 of 11
their sentence is modified to simple imprisonment for one month. This sentence shall be set off against the period already undergone and they shall be released forthwith from Jail unless required in connection with any other case. The appeal stands partly allowed. Send down the records. JUDGE CHIEF JUSTICE T U Choudhury Crl.A.(J) No.57/ 2015 Page 11 of 11