MD. AMAL DEWAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) BY preferring this appeal under Section 374(2) Cr.P.C., the appellants challenge the judgment and order dated 29.5.2004 rendered by the Additional Sessions Judge (Adoc), Barpeta in Sessions case No.78 of 2001 convicting them under Sections 341/325/304/34 IPC and sentencing them to undergo rigorous imprisonment for seven years and fine of Rs.2000/-, in default, to undergo further rigorous imprisonment for three months for offence under Section 304 IPC and convicting them further under Section 325 IPC and sentencing them to suffer rigorous imprisonment for two years with fine of Rs.1,000/-, in default, to undergo imprisonment for two months and also convicting under Section 341 IPC and sentencing them to suffer rigorous imprisonment for two months.

(2.) THE story projected by the prosecution is that on 3.7.1993 at about 7 pm, while Jalu Dewan, father of informant was returning home after attending Namaj from a nearby Mosque, the accused persons Jamal, Amal, Ashraf and Mustt. Aymana Bewa, being armed with deadly weapon wrongfully restrained him on the way and caused grievous injuries on the person of Jalu Dewan for which he was removed to Chenga PHC and thereafter, in a critical condition, to Barpeta Civil Hospital for treatment and finally referred to Gauhati Medical College & Hospital, where he succumbed to his injuries. His son Amanur lodged a written FIR with the Officer-In-Charge of Tarabari Police Station on 4.7.1993 which was received and registered as Tarabari P.S.Case No.59 of 1993 under Section 341/325/34 IPC. THE I.O., during investigation, visited the place of occurrence, recorded the statement of witnesses under Section 161 Cr.P.C. and seized one wooden lathi from the house of accused persons in presence of witnesses. THE I.O. also seized two bamboo lathies during the course of investigation. THE I.O.,who initially investigated the case was transferred, and his successor I.O. submitted charge-sheet against all the four accused persons. THE case, on being committed to the court of Sessions, Barpeta charge was framed under Section 341/325/304/34 IPC against all the four accused persons. THE charges being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. During trial, accused Ashraf Dewan expired and the case was dropped as against him. THE prosecution examined in all 10 witnesses including the police officials to establish the charge against the accused persons. THE defence examined two witnesses including one medical officer. A court witness was also examined during trial. THE learned trial court acquitted the accused Mustt.Aymana Bewa and convicted and sentenced the other two accused persons Md.Jamal Dewan and Md. Amal Dewan, present appellants as stated earlier.

(3.) FOR arriving at a conclusion and decision let me first appreciate the evidence of the important witnesses. The informant Md. Amanur was examined as P.W.4. He is one of the sons of the deceased. In his deposition he stated that on the day of occurrence in the evening, his father was proceeding towards home from a mosque after attending Namaj. On his way accused Jamal, Amal and Ashraf restrained his father and assaulted causing severe injuries on his person. On hearing the cry of his father he alongwith his brother Hannan Dewan (P.W.5) rushed to the place of occurrence to save his father. His father was brought home by them in an injured condition. They removed the injured father to Chenga PHC and Barpeta Civil Hospital for treatment. His injured father was referred to Gauhati Medical College & Hospital where he succumbed to his injuries. The FIR was proved by this witness. It was marked as Ext.3. His signature on FIR was marked as Ext.3(1). This witness, in cross-examination stated that accused Amal instituted a case against him and others and in the said case they got acquittal. A suggestion was put by the defence to this witness that there was a land dispute and a quarrel between the accused Amal and deceased Jalu ensued and he (Hannan) as son of the deceased while trying to inflict lathi blow on the accused Amal dewan, the blows accidentally fell on the head of Jalu Dewan and as a result Jalu Dewan died. This suggestion has been denied by this witness. From the suggestion put by the defence on both P.W 4 and 5, it appears that the defence admitted that a quarrel leading to marpit and death of Jalu Dewan took place but the defence had taken the plea that the fatal lathi blow fell on the deceased accidentally while the sons of the deceased gave the lathi blow on the accused persons.