KOBBAD ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) By this common judgment and order, we propose to dispose of five Criminal Appeals preferred by as many as 24 (twenty four) appellants, assailing the judgment and order dated 31-08-2015 passed by the learned Sessions Judge, Barpeta, in connection with Sessions Case No. 57/2006. The 13 (thirteen) appellants in Crl. A. No. 276/2015, viz. 1. Kobbad Ali @ Kobat Master, 2. Kamaluddin @ Kamal Mandal, 3. Somesh Ali @ Somej Ali, 4. Abdul Wahab @ Afa, 5. Dildar Hussain, 6. Atowar Rahman @ Atabor Ali, 7. Lukman Ali, 8. Saimuddin @ Sainuddin, 9. Nur Hussain, 10. Moinul Haque, 11. Ayub Ali, 12. Kazimuddin, 13. Montaj Ali; the 2 (two) appellants in Crl. A. No. 107/2016, viz. 1. Abul Hussain @ Hussain, 2. Iman Ali; the 3 (three) appellants in Crl. A. No. 61/2016, viz. 1. Motiur Rahman, 2. Samsul Hoque, 3. Sukumuddin as well as the sole appellant in Crl. A. No. 62/2016, viz. Sultan Mahmud have all been convicted under Section 302/149 of the Indian Penal Code (IPC) for committing the murder of Moslemuddin, Alebuddin and Mukam Ali and sentenced each of them to undergo rigorous imprisonment for life and also to pay fine. However, the 5 (five) appellants in Crl. A. No. 266/2015, viz. 1. Rafikul Haque, 2. Kafiluddin @ Kafel, 3. Hajibur Rahman, 4. Showkat Ali and 5. Sahidul Islam have been convicted under Sections 326/149 IPC and sentenced to undergo rigorous imprisonment for 07 years and also to pay fine. It appears from the record that out of these five appellants, Sahidul Islam is already out on bail and the remaining four appellants, viz. Rafikul Haque, Kafiluddin @ Kafel, Hajibur Rahman and Showkat Ali have already served their jail sentences during the pendency of the appeal. It also appears from the record that by the order dated 27-02-2017 passed in I.A.(Crl.) 62/2017 and I.A. (Crl.) 63/2017 arising out of Crl. Appeal No. 276/2015 the five appellants i.e. 1. Kobbad Ali, 2. Atowar Rahman, 3. Lukman Ali, 4. Sainuddin and 5. Nur Hussain were granted bail and accordingly they are also out on bail. Besides, appellant Sukumuddin in Crl. Appeal No. 61/2016 was granted bail by the order dated 07-06-2017 passed in I.A.(Crl) No. 229/2017 arising out of Crl. Appeal No. 61/2016.

(2.) The prosecution case, as unfolded from the materials available on record, is to the effect that on 28-03-2004, at about 10:00 a.m. Md. Moslemuddin, along with the President of Kasumara Gaon Panchayat viz. Md. Kalimuddin, was going to Nagarbera Bazar on a motorcycle. On their way, the accused persons viz. 1. Moinal Hoque, 2. Lokman, 3. Dildar, 4. Sainuddin, 5. Rahijul Hoque, 6. Kabbat Ali Master, 7. Samsul Hoque, 8. Kafaluddin, 9. Sames Ali, 10. Nur Hussain, 11. Montaz, 12. Dildar Hussain, 13. Hazi Mandal, 14. Soukat Ali, 15. Kamaluddin, 16. Afa Sheikh, 17. Amjal Ali, 18. Abul Hussain, 19. Imam Ali, 20. Sukumuddin, 21. Matiar, 22. Abbar Ali, 23. Ayub, 24. Atabor Rahman, 25. Kajimuddin, 26. Mahidul and 27. Sultan, forming an unlawful assembly and on being armed with deadly weapons such as Dao, Phala, Dagger, Khukri, Kerech, Lathi, Holonga etc; had restrained them. On being attacked, Md. Muslem Ali and Kalimuddin ran away from that place and took shelter in the house of a relative Md. Abdul Hamid whose house was located nearby. However, the above-named accused persons had chased them and entered into the house of Md. Abdul Hamid. They had killed Muslem Ali by stabbing him with deadly weapon. The accused persons had also caused grievous injuries on Kalimuddin. On receipt of information about the incident the brothers of Muslem Ali, viz. Mukam Ali, Akram Ali, Alebuddin, Moinul and Altab came to the place of occurrence. Then the accused persons had attacked them also and killed Alebuddin and Mokam by using deadly weapons and had also caused grievous injuries on the person of Akram Ali, Moinul and Altab Hussain. The owner of the house Md. Abdul Hamid and his son Saukat Ali had tried to resist the assailants but both the father and son were also attacked by the accused persons, as a result of which, they had also suffered grievous injuries. After the occurrence, the village people came to the spot and took the dead bodies of Muslemuddin, Aleb and Mukam to their houses, while the injured Akram and Moinul were taken to the Nagarbera Hospital for treatment, where-after, both the injured persons were shifted to the Gauhati Medical College and Hospital for better treatment. Injured Altab Ali was sent to Bahari for treatment.

(3.) On 28-03-2004, Md. Azizur Rahman s/o Abdul Khaleque, who is a resident of village Moiradia falling under Tarabari Police Station, in the district of Barpeta, had lodged an ejahar before the Officer-in-Charge, Tarabari Police Station reporting the incident. In the ejahar, 27 (twenty seven) accused persons viz. 1. Moinal Hoque, 2. Lukman, 3. Dildar, 4. Sainuddin, 5. Rahijul Hoque, 6. Kubbal Ali Master, 7. Samsul Hoque, 8. Kafaluddin, 9. Sames Ali, 10. Nur Hussain, 11. Montaz, 12. Billal Hussain, 13. Hazi Mandal, 14. Soukat Ali, 15. Kamaluddin, 16. Afa Sheikh, 17. Amjal Ali, 18. Abul Hussain, 19. Imam Ali, 20. Sukumuddin, 21. Matiur, 22. Abbar Ali, 23. Ayub, 24. Atabor Rahman, 25. Kazimuddin, 26. Mahidul and 27. Sultan have been named. On the basis of the said ejahar, Tarabari P.S. Case No. 38/2004 was registered under Sections 147/148/149/341/302/325/326 of the IPC and the usual police investigation had commenced. Upon completion of investigation, the Investigating Officer (I/O) had submitted charge-sheet against all the accused persons under Sections 147/148/341/149/325/326/323/302 IPC. Accordingly, charges were framed against the accused persons which were also read over and explained to them. Since the accused persons had denied the charges and claimed innocence, the matter went up for trial.