RUSTAM ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) By judgment delivered on 20 5-93 in Sessions Case No. 42/90 the learned Sessions Judge, Karimganj, (Shri I. A. Ansari) con victed and sentenced the appellants - (1) Rustom Ali (2) Abdul Sattar, (3) Md. Makmad Ali, (4) Abdul Jabbar, (5) Md. Fachan Ali and (6) Maklis Ali- under Section 302/149, I.P.C., life. Further he convicted and sentenced Abdul Jabbar (appellant No. 4) and Maklis Ali (appellant No. 6) under Section 324, I.P.C. to R. I. for one year and. con victed and sentenced Fachan Ali (appellant No. 5) under Section 323, I.P.C. to R. I. for 6 months. There was no sentence of fine. It was ordered that the sentences would run concurrently. All the appel lants are serving the sentence in jail.

(2.) In brief the case for prosecution can be stated thus : On 10-3-85, Abdul Kadir (P.W. 4) complained to eldermen of village Jakiwalla that his elder cousin brother, Abdul Sattar (appellant No. 2) played eve teasing to his wife, Farzun Nessa. On that complaint the village elders called Abdul Sattar to appear before them at 9/9.30 a.m. of 11-3-88 for settlement by Bichar. So Abdul Kadar and Abdul Sattar and their men came to the place of Bichar. Before start ing Bichar, the eldermen (Mahammad, Insan, Yasin, Abdul Khaleque and Surman Ali) who came to hold the Bichar asked each party to make security deposit of Rs. 500.00. Sattar took objection to the demand. Surman Ali was the father of Abdul Kader; he wanted that the security amount should be enhanced. Quarrel then ensued and the appellants (who are party of Abdul Sattar) started assault with dao, lathi, jatha and juja and inflicted injuries on Surman Ali, Insan and Yasin Ali, the three eldermen, and on Kutum Ali. The four injured were produced before P.S. The Police made G. D. Entry No. 245 dated 11 3-88 and sent the injured to Patharkandi Health Center which in turn sent Surman Alo to Karimganj Civil Hospital, where he died at midnight of 11-3-88. At 1 p.m. of the next day (12-3-88), Jawaid Ali (P.W. 6) gave F.I.R. (Ext. 1) upon which Patharkandi P.S. registered case No. 38/88 against the six appel lants, Ajimuddin and Abdul Khaleque, who were named in the F.I.R. as accused. In the Court it was G. R. case No. 177/88. A.S.I., G. Deka, made inquest report (Ext. 3) on 12-3-88 in the hospital and the Doctor (P.W. 2) also did the p.m. on the same day. During the day time of 12-3-88, the I.O. prepared sketch map of the place of occurrence (Ext. 2) and, after investigation, submitted charge sheet under Sections 147/148/149/325/326/302, I.P.C., against the six appellants. The C. J. M. of Karimganj com mitted the case to Sessions Court. After the Doctor (P.W. 2) completed the post mortem on Surman's dead body, Abdul Sattar (appellant No. 2) also lodged a cross F.I.R. (Ext.4) at 8 -30 p.m. of 12-3-88, giving the names of - (1) Farjun Bibi, (2) Md. Tasbir Ali, (3) Md. Surman Ali, (4) Md. Kutub Ali, (5) Md. Insan Ali, (6) Md. Yasin Ali, (7) Md. Jawaid Ali, (8) Md. Aptar Ali, (9) Md. Abdul Kadir, (10) Md. Sukkur Ali, (11) Md. Allauddin and (12) Md. Majir Ali as accused. The gist-of the F.I.R. was this :

(3.) In the present case (S.C. No. 42/90) the Sessions Judge, Karimganj, framed charge on 11-12-90 : (1) under Section 147, 149, 302, I.P.C. against the six appellants for forming unlawful assembly and committing the murder of Surman Ali by rioting, (2) under Section 324, I.P.C., against Abdul Jabbar for causing hurt to Kutum Ali by huja, (3) under Section 324, I.P.C., against Maklis for causing hurt to Insan Ali by a dao and (4) under Section 323, I.P.C., against Huchan Ali for causing hurt to Kutum Ali by lathi. As all the appellants pleaded not guilty, the prosecution examined 10 P.Ws. The Court recorded the statement of defence of each appellant under Section 313, Cr. P.C., but they did not examine witness for defence. The defence plea, as noted by the learned Sessions Judge was,- while Abdul Sattar, Abdul Jabbar and Makmad Ali was proceeding to Makacherra for cutting thatch and passing near Surman Ali's house, Surman Ali (deceased), Kadir Ali, Kutum Ali and others suddenly assaulted them and it ensued into a fight it which appellants also sustained injuries.