MD. YAD ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS is also another criminal appeal which has come up for disposal about 10 years after the incident. The incident happened on 13.9.76 at 5 A.M. The accused has been convicted under Sections 304 and 326, Indian Penal Code and sentenced to suffer rigorous imprisonment for three years on the first count, an rigorous imprisonment for another year on the second count. The sentences have been directed to run concurrently.

(2.) ON his way to the High Court, the accused Appellant who belongs to the lowest stratum of the society burdened with a large family with many cares had the ordeal of undergoing incarceration, the police investigation, proceedings before the court and till to -day anxiously awaiting disposal of this appeal for the last six years. Such person, under similar circumstances can legitimately say that they are victims of "man made injustices". The sword of Damocles still hangs over his head. It is perhaps more killing than the death penalty. Either we are to bear with such maladies or innovate drastic revolutionary means to dispense quick justice. The judiciary must react to enable itself to mete out 'judicial justice'. Is it possible to consider the merits of such appeals oblivious of the sufferings of the poor litigants? Now, if the appeal is dismissed the accused shall have to undergo three years imprisonment after 10 years of the commission of the alleged offences. Let something be done as the pangs and agonies of the poor have become unbearable. This is the message tag which I append to the judgment for consideration of the learned and enlightened persons to do something positive, affirmative so that the Constitutional duties and obligations may be obeyed. The court system is being run in archaic 'bullock cart system'. Various scientific improvements have been made in other disciplines since the independence. What about the judiciary? The judiciary is an integral part of the Constitution. It is one of the three wings of the State. If the aphorism, "in determining the Nation's rank in socio -political civilization no other test is more decisive than the degree in which justice, as defined by law, is actually realised in its judicial administration" is fractionally correct, I feel that the authorities cannot wait further to provide sufficient materials to inject and vibrate "the judicial system" help fulfil the aspirations of the people. A strong, trusted and vigilant judiciary can inject inspirations to millions of Indians. Is there any doubt that our little Indians are groaning under the suffocating pressures and octopus like tentacles of the forces trying to disrupt social ethics, fellow feeling, uprightness unity and integrity of India. The efficacy and efficiency of the judiciary can re establish euphoria by removing the maladies, accelerate progress and developments of the Nation. I believe, it is the judiciary which can help achieving excellences of the people. The common cry is for social and economic justice, for peace and harmony which are directly related to the socio -economic injustice, want of peace and harmony. In the ultimate analysis, to a common, man, tossed, rocked, shaken and repressed by various turmoils, the only saviour appears to be an impartial judiciary. I can not side track or shirk responsibilities to the nation, remain a silent spectator, and therefore, I emphatically say that the judiciary must receive congruous help and assistance from all. When the clock struck 12 in the mid -night of 14th/15th August 1947, Pandit Jawaharlal Nehru spoke for himself and the people of India.

(3.) THE short point that falls for consideration is whether the accused exceeded the right of private defence of the person or property. Before entering into the question let me set out a synopsis of the disposition of the witnesses examined by the parties. P.W. 1, Dr. A. Kundu, examined P.W. 4, Nur Mahammad and found 2 injuries, one incised looking penetrating wound and a swelling wound on the forearm. The doctor claimed that injury No. 1 was a grievous hurt. P.W. 2, Dr. D.N Sarma, held autopsy on the dead body of the deceased Tahej Mandal. He found five incised wounds on the dead body. He opined that the death was due to shock and hemorrhage resulting from injury No. 1. Indeed, injury No. 1 was on the abdomen but the rest of the wounds were on non -vital parts of the dead body. The injuries were ante -mortem. P.W. 3, Hatem Ali, claimed that he had purchased the land 3 years prior to the incident. He implanted sesame seeds two days earlier to the incident. On the day of occurrence the accused Yad Ali was ploughing on that land and his son P.W. 4, Nur Mahamdad prevented the accused from ploughing but Yad picked up stone and pelted at P.W. Nur Mahammad. The accused brought out a knife and stabbed Nur Mahamad who cried out for help. Upon hearing his cry, Tahej Mandal (the deceased) came and tried to prevent the accused but he was also stabbed by Yad three or four times. Hatem Ali could not come to rescue his son and brother as he had been kept detained by the woman folk of accused. He claimed that he had purchased the laud from one Nur Islam and raised crops on it. He also stated that accused Yad Ali purchased 2 bighas of land from Nur Islam. After the purchase, Yad Ali, the accused, cultivated his own land. Nur Islam, the Vendor had his residential house on the land purchased by him (P.W. 3, Hatem) Nur Islam continued to live in the house but later left the place putting Yad Ali in possession thereof. He claimed that he had demanded of Yad Ali to leave the house. He said that they had a standing dispute with the accused in respect of the possession of the land. The village elders were called 2 days before the occurrence to settle the dispute. Earlier, his three sons had gone to plough the land but the accused drove them out and slapped P.W. 4, Nur Mahammad. Thereafter, he called a few persons, who included P.W. 6, Abdul Gani and P.W. 7, Abdul Gafur. Abdul Gafur is the father -in -law of Hatem's sou P.W. 4, Nur Mahamad, and P.W. 6. Abdul Gani is the brother of Gafur. Although, P.W. 3, Hatem claimed that he had purchased the house which was in possession of the accused be could not say whether his sale deed showed that any house was purchased by him. It is revealed from his evidence that he had demanded vacant possession of the house in occupation of Yad Ali and his family, which consisted of women and children. Further, P.W. 3, claimed that the land just adjacent to the house had fruit hearing trees like plaintain. He has admitted that the accused was living in the house which he had purchased and also admitted that plaintains and usufructs of the land were being enjoyed by the Appellant. His case is that apart from the house and the area in which the fruit bearing trees stood, there was a small adjacent plot which he claimed was in his possession and the accused trespassed, upon that plot on the date of occurrence. The case of the accused is that the house and the land were all along in his possession. They were never purchased by P.W. 3, Hatem Ali. I do not find from Ext. 5, the sale deed, that Hatem purchased any house. Further, it does not establish that the disputed land was purchased by Hatem. Another interesting feature is that the absence of any injury on the witness, which the witness tried to explain by saying that be was physically detained by the women folk of Yad Ali, and, therefore, he could not go to the place of occurrence. However, his evidence clearly shows that he was not an eye witness to the occurrence as claimed by him. He had stated to the police during investigation that only upon hearing the cries of Nur Mahammad and Tahej Mandal he went to the place of occurrence. This shows that after the alleged assaults were over the witness went to the place of occurrence. He admitted that the land was not mutated or registered in his name in the revenue records. He denied the suggestion that forming an unlawful assembly he along with others ransacked the house of Yad Ali and assaulted him. P.W. 4, Nur Mahamad son of P.W. 3, Hatem corroborated the evidence of his father as he was bound to do, as the occurrence not only involved the ownership and possession of the land and house, but also to avert the serious charges brought against them by the accused, Interestingly, he denied the existence of any dispute with the accused on any count including the disputation over the possession of the land. He denied the suggestion that he along with others went in a body to forcibly oust the accused from his house. He made various contradictory statements in cross examination regarding the act of possession, which countered the testimony of P.W. 3, Hatem Ali. The witness had stated before the police that the land where the occurrence had taken place was "in the occupation of the accused Yad Ali although it was in the name of his father." P.W. 5, Kachironnessa Bewa, is the wife of the deceased Tahej Mandal. She claimed that the incident happened in the field and she saw Yad Ali stabbing her husband. Learned Judge has very rightly rejected her testimony for the reasons set out in the judgment. P.W. 6, Abdul Gani is not an eye witness. He was reported about the occurrence by P.W. 4, Nur Mahammad. It is stated that he was not aware as to whether the land belonged to Nabirun Nessa. Nor did he know that Nabirun adopted and brought up the Appellant and gave the landed property owned by her. He said that the accused was living with his old mother in the homestead land. He said that he was not aware of any prior dispute between accused and P.W. 3, Hatem in respect of the land and he never decided any dispute between the parties. P.W. 6, Abdul Gafur came after the incident and heard about it. He proved the seizure list. He said that P.W. 3, Hatera had purchased the disputed land from Nur Islam. The said Nur Islam was the nephew of Nabirunnessa. He admitted that accused Yad Ali's mother got some properties from Nabirun Nessa. He admitted that Yad Ali purchased two bighas of land from Nurul Islam and occupied it. He claims that Yad Ali lived in the dilapidated house purchased by Hatem Ali and Nurul Islam, the vendor, had allowed Yad Ali to occupy the land. He stated that he had no knowledge about the sitting of any 'mel' or panchayat to decide the right or possession of the parties in respect of any land. In cross -examination he admitted that he had no knowledge about the land purchased by Hatem Ali. P.W. 8, Abdul, Sattar proved the seizure of the dagger, P.W. 9, P. Chakraborty, is the S.I. of Police, who investigated the case. He stated, inter alia, that be found injuries on the body of the accused and sent him to doctor. It is seen from the sketch map and from the evidence of witnesses that on the disputed land stood two residential houses, few plaintain trees and a compound cum -small area for cultivation, which may otherwise be described as a "kitchen garden".