MAHIM UDDIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) Mohim Uddin and Islam Uddin had been convicted under Section 304 Part II read with Section 34 of the I.P.C. vide judgment dated 28-1-1984 passed by the Sessions Judge, Silchar/Karimganj at Silchar in Sessions Case No. 107/1982, sentencing them to undergo R.I. for 3 years each. Hence, this appeal.

(2.) The occurrence took place on 25-8-1982. First Information Report was lodged on that very day. The accused party had also lodged cross F.I.R. alleging that they have been assaulted by deceased and prosecution witnesses. Both sides sustained injuries. There was no dispute on the fact of death of Gulam Subhan Choudhury as a result of injuries sustained on head and abdomen. He died in the hospital after 3 days of occurrence.

(3.) Evidence of prosecution witnesses P.Ws.1 and 2 had established that the accused party was in possession of the land. They got possession by virtue of an order under Section 145 Cr. P.C. and accused were in possession even on the day of occurrence. In that morning, informant P.W.I along with his brother Gulam (deceased), Mumir Rahman, Turfan and Kurman went to plough the land to dispossess the accused. So, they resisted and there was altercation followed by mutual marpit. Both the appellants sustained injuries over the head and incised wounds. They were in possession of the land, prosecution party came as aggressors to disposses them, and they were assaulted when resisted, so right of private defence had been extended to the accused party under the law in respect of property and person. They used criminal force in exercise of such right and at such moment there was no occasion to measure in golden scale as to the degree of force to be exercised in order to avert the apprehension of grievous hurt or of death. The Trial Court held that the accused party had right of private defence of property and person, but at the same time opined that the two appellants had exceeded their right. The evidence of eye witness P.W.1 and the dying declaration showed that all the 6 accused participated in the assault There was no distinguishable evidence to attribute to appellants with the fatal injuries causing death. The dying declaration lacked discloser as regards specific act done by Mohim Uddin and Islam Uddin in the assault actions in order to separate them from the group. Once it is found that the land was in possession of the accused, but under the aggressions of forcible dispossession; and at the same time had apprehension of grievous hurt or of death and received injuries; then it was the appropriate occasion for the accused to exercise the right to the extent of killing and that could not be an act of excess. In the instant case, from the facts, there was no excess on the part of two appellants. The Trial Judge failed to appreciate the evidence and law in the case. They were entitled to acquittal along with other accused.