HAREJ ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE appellant Harej Ali has open convicted under Section 302 I. P. C and sentenced to imprisonment for life on the basis of a statement recorded in course of investigation, treated as a dying declaration, and evidence of eye witnesses.

(2.) ON 25 -7 -75 P. W. 2, Ahmed Ali, lodged an ejahar at the Dhing Police Station that at about 2 P - M. that Friday while his father Abdul Rahman Khan (deceased) was laying thatch on the road near their house, an altercation ensued between him and Harej All, Harmui Ali Mafizuddin, Abdul Matalib and Sirajul Haque, and Harej and Harmuj, as ordered by the rest, bringing, lathis from their house clubbed - and felled Abdul Rahman Khan as well as Ahmed Ali (the complainant). Registering a case thereupon police (P. W. 6) came to the place of occurrence and recorded Abdul Rahman's statement and forwarded him for treatment to Ahomgaon State Dispensary wherefrom, after treatment, he was brought back home where he died next morning. Charge sheet was submitted only against Harei and Harmuj under Section 302/34 I. P. C, and being committed to Session, charge was fram -? ed there under Section 302/34 I.P.C. for murder of Abdul Rahman and under Section 303/34 for causing simple injuries to Ahmed AH, Both pleaded not guilty to the charges. The prosecution examined 7 witnesses including the Doctor (P. W. 1) and the Investigating Officers, p. Ws. 6 and 7. while the defence examined none. The prosecution evidence is that in the night of 24 -7 -75 a theft took place at the house of one Hurmat Ali Haji, a co -villager, and the two accused persons, namely, Harei Ali and Harmuj Ali having been suspected, a village 'mel' or 'bichar' was held at the Village Maktab where Abdul Goffur, the eldest son of the deceased Abdul Rahman played leading role and the suspected persons were cautioned for future. While returning from that 'mel' the two accused persons had altercation with Abdul Rahman where at they went to their house and came back armed with lathis and Harej assaulted Abdul on his head. Ahmed Ali, the complainant, who was working in a nearby field and came running to his rescue, was also given lathi blows on his head by the two accused persons. Abdul Rahman receiving Harej AH's lathi blow fell down. Simonnessa (P. W. 3), wife of Abdul Rahman, was with him and hearing hue and cry Jab -bar, Asrab Ali and Abdul Gaffar having arrived, the accused persons fled away towards their house.

(3.) THE trial court disbelieved the defence version and relying on Ext, 3 and evidence of eye witnesses convicted the appellant Harei Ali as above, but acquitted Harmuj All Hence this jail appeal.