CRL.APPEAL No. 97/2005

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1 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA; MIZORAM AND ARUNACHAL PRADESH) CRL.APPEAL No. 97/ Abu Taher, S/o Nurul Haque 2. Basiruddin Choudhury S/o Lt. Arzad Ali Choudhury 3. Dalilur Rahman, S/o Lt.Amiruddin 4. Rahmat Ali S/o Dalilur Rahman, 5. Abdul Sattar, S/o Abdul Khair 6. Irshad Ali, S/o Abdul Khair All are resident of vill- Akkanto gaon, P.S.Lanka Dist. Nagaon, Assam..Accused/Appellants -Vs.- State of Assam Respondent BEFORE HON BLE DR.(MRS) JUSTICE INDIRA SHAH For the Appellant For the Respondent : Mr.A.Choudhury, Advocate : Mr.D.Das, Addl.Public Prosecutor, Assam. Date of Hearing : Date of Judgment :

2 2 JUDGMENT & ORDER Heard Mr.A.Choudhury, learned counsel for the appellants and Mr.D.Das, learned Addl.P.P. appearing on behalf of the State respondent. 2. The judgment and order dated passed by learned Addl. Sessions Judge (Ad-hoc), Hojai in Sessions Case No. 8(N)/2004 has been impugned in this appeal. 3. Briefly stated, the prosecution case is that on at about 1 P.M. while Abdul Haque (PW 3) was proceeding by his bi-cycle, on the embankment of Kapili river, towards market the accused appellants armed with lathi, spear etc. attacked him. Hearing the alarm raised by Abdul Haque his brother Mainul Haque who rushed to the site was also assaulted by the accused persons. The prosecution case is that Raju Mia (PW 1) saw his uncle Abdul Haque proceeding on his bicycle. Immediately thereafter he heard the alarm raised by the victim. PW 1, his father Mainul Haque (PW 5) immediately rushed to the site. When mainul Haque came in rescue he was also assaulted. PW 2 Muniruddin saw the incident from a distance. PW. 3 Abdul Haque and PW 5 Mainul were shifted to hospital. The parts of spear embedded in the chest and face of the victim Abdul Haque were removed by the doctor(pw 6) for which Abdul Haque had undergone operation. PW 4 another doctor examined both the victims in the hospital. PW 2 Muniruddin lodged the F.I.R. There was a cross case against the victims on the basis of FIR lodged by the accused. On conclusion of trial the appellants were convicted u/s 326/325/324 read with Section 149 I.P.C. and sentenced to undergo imprisonment for 3 years with fine of Rs.1000/- and two years u/s 326 IPC. Accused Dalilur Rahman, Rahmat Ali, Irshad Ali, Abu Tahe and Abdul Sattar were convicted u/s 325 IPC and 324 IPC and sentenced to undergo R.I. for 2 years with fine of Rs. 500/- each and R.I. for 1 year and Accused Basiruddin was sentenced to undergo S.I. for the same period with fine as indicated above.

3 3 4. It is submitted by the learned counsel for the appellant that none of the witnesses in their statement recorded under Section 161 Cr.P.C. stated the kind of weapon used by individual accused. Moreover, the evidence of witnesses are contradictory on material point. The trial court ought to have scrutinised the evidence of witnesses more carefully when the witnesses examined were all partisan witnesses and there was cross case against the victims. It is submitted that the incident occurred due to sudden provocation and there is no cogent evidence to prove that the accused were aggressor. There was no common object to cause injuries to the victim. 5. Initially, only six accused were named in FIR. They are Basiruddin, Dalilur Rahman, Rahmat Ali, Irshad Ali, Abu Taher and Abdul Sattar committed the offence but subsequently five others were also implicated. 6. PW 2 Muniruddin who lodged the FIR admitted in his crossexamination that he saw the incident from a distance and could not identify the assailants. PW 3 and PW 5 are the injured persons. PW 3 Abdul Haque admitted that there was a land dispute between him and the accused Dalilur Rahman and Basiruddin. PW 1 Raju Mia is nobody else than the nephew of the victim Abdul Haque. He stated that hearing the alarm raised by Abdul Haque he alongwith his brothe Abdul Kadir, uncle Moniruddin, Nasiruddin rushed the place of occurrence and witnessed the occurrence. When his father Mainul Haque Choudhury came he was also assaulted by the accused person. PW 3 Abdul Haque deposed that accused Basiruddin inflicted head injury by means of a sharp weapon. Accused Rahmat Ali inflicted ballam blow, accused Abdul Sattar pierced jathi, Irshad Ali gave blow on his back. Abu Taher inflicted jathi. Accused Kurban Ali, Rizan Ahmed,

4 4 Rafiquddin and other also assaulted him. He was dragged by Abu Taher and Rahmat Ali. When Mainul Haque came he was assaulted by Daililur by means of ballam. PW 5 Mainul Haque saw the accused persons assaulting PW 3. Corroborating the evidence of PW 3 he stated that Basiruddin gave dao blow which landed on the head of PW 3. Abu Taher assaulted by means of jathi. Abu Taher pierced jathi, Dilalur Rahman assaulted this witness by means of Ballam. PW 6 Dr Al Hilal Choudhury deposed that he removed the spears embedded in the chest and face of Abdul Haque by operation. The iron parts of the spear removed therefrom were seized by the police. There is no reason to disbelieve the evidence of PW The investigating officer PW 7 stated that PW 2 only implicated on Basiruddin, Dalilur, Rahman Ali, Irshad Ali, Abu Taher and Abdul Sattar in his statement recorded under Section 161 Cr.P.C. Likewise PW 3 did not specifically stated that except Basiruddin and Rahmat could say who else assaulted him and the weapons used by them. He did not state that Abdul Sattar inflicted injury by means of spear and the said spear embedded in his chest. 8. Thus it appears that evidence of the witnesses were improved from what they deposed earlier. There was a tendency to rope others who were not named earlier in the FIR. 9. PW 4 the doctor who examined the victims in the casualty unit found that victim Abdul Haque sustained fracture of his left ulna, right lower rib and left hepatic bone. He also found penetrating injury on left cheek, left nose and right arm. There was injury on scalp and other parts of his body. He found small penetrating wound on left side of chest of the vic tim Moinul Haque. 10. The fact that the victims sustained the injuries as alleged has been corroborated by the medical evidence.

5 5 11. The accused Basiruddin and Rahmat Ali suffered simple injuries caused to them by sharp object. The prosecution has not explained how the accused sustained the injuries. It is contended by the learned counsel for the appellants that it cannot be ruled out that the victim parties in this case were the aggressors who caused injuries to the accused person. The incident in which the accused sustained injuries occurred on the same day and the FIR in the cross-case was also registered on the same day. 12. Even if the defence version is accepted that the accused were not the aggressor, the fact remains that the victims sustained injuries and injuries to one of the victim suffered grievous injuries. 13. There was no such plea taken by the accused persons that they inflicted the injuries in exercise of their right of private defence. They completely denied that they caused injuries to the victims. In the reported case of Sadat Ali & others Vs. State of Tripura reported in 2004(3) GLJ 673, it was held in para 16 and 17 of the judgment as follows: 16. While pronouncing the judgment on the guilt or otherwise of the accused facing the two trials, the judgment of each case shall be kept confined to the discussion of the evidence adduced in that particular case and a Court shall not make use of the evidence of one case for the purpose of enabling it to pronounce the judgment in the other case or allow its findings in one case to be influenced in any manner whatsoever to the prejudice of the accused by the views, which it may have formed in the other case. 17. In other words, while considering the guilt or otherwise of an accused in a case, the evidence from the counter or cross case, as it is commonly called, cannot be imported into the case and based on the evidence adduced

6 6 in a cross case, the guilt or otherwise of the accused cannot be determined. This, however, does not mean that a person, who is an accused in the cross case, cannot give evidence in the case launched against him even if the evidence, which he seeks to give, has some bearing or may have some bearing in the cross case. 14. Here in the instant case, the accused persons have not pleaded that they inflicted injuries to the victims in exercise of right of private defence. The fact remains that one of the victims sustained grievous injuries and even if there was a cross case and the FIR lodged in cross case is proved, the accused exceeded the right of private defence by inflicting grievous injury to the victim. Therefore, they cannot claim the benefit of Section 96 of IPC. 15. It is in the evidence of PW 3 Abdul Haque and PW 5 Mainul Haque that the accused persons assaulted the victim Abdul Haque. But there is no evidence as to whose blows caused grievous injuries. The accused persons intended to assault the victim Abdul Haque but the learned trial Court could not have held that they had the knowledge that they shared common intention to cause grievous injuries. 16. In absence of evidence whose blows caused grievous injury to the victim Abdul Haque none of the accused persons could have been held liable for commission of offence under Section 326 IPC. They are liable to be convicted u/s 324 IPC only for the injuries caused by them by means of sharp weapon. 17. In the result, the appeal is partly allowed. The accused appellant Abu Taher has already expired. The sentence of imprisonment u/s 326 and 325 IPC read with Section 149 IPC are set aside. The accused appellants are convicted under Section 324 IPC and the sentence of imprisonment of one year passed by the trial court is upheld.

7 7 18. Accordingly the accused appellants are directed to surrender before the learned trial court to serve out the sentence. 19. Send down the LCR alongwith a copy of this judgment. JUDGE Pb/-

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