ABDUL KASAM Vs. STATE OF ASSAM

JUDGEMENT

(1.) The occurrence which had seen the death on Abdul Kadir had taken place in the morning hours of 28-6-80. According to the prosecution, P.W. 6 Abdul Rashid had gone to his land on that date, in the morning for ploughing. P.W. 4 Jamal had also come there with breakfast meant for P.W. 6. Accused Altaf Ali had his land in contiguous North. It is the prosecution case that here was a ridge in between the land of Abdul Rashid and Altaf Ali. On going to the land on the day of the occurrence, Abdul Rashid noted that a new ridge had; been erected by encroaching some of his land. After Abdul Rashid had finished his breakfast he saw Altaf All when h. was asked as to whether he had demolished the ridge erected earlier. Altaf Ali is said to have replied that he was entitled to two cubits of land from that of Abdul Rashid's. At this Abdul Rashid stated that a Mandai should be brought who should survey the land. A verbal altercation then took place hearing which Abdul Kadir came to the land of Abdul Rashid followed by Abdul Gani, P W. 7. Abdul Jalil, P.W. 3, also came there. Knowing about the altercation, Abdul Kadir told Altaf Ali not to quarrel and assurel that he would settle the matter after his return from the town. Altaf Ali was not satisfied at this and shouted Where are you, come here, come here. Hearing this, accused Abdul Kasem and Abdul Mannan emerged from a thicket, which was at a distance of about two nals. Kasem was then armed with dao and lathi, and Abdul Mannan had a dagger. After these two persons had come, Altaf Ali told to hold Kadir. Abdul Kasem then handed over his lathi to his father (Altaf Ali) and Mannan (brother of Altaf Ali) stabbed Kadir with the dagger in the chest, Kasem gave a dao blow on the left arm of Kadir. When Abdul Gani wanted to save his brother Abdul Kadir, Altaf Ali dealt a lathi blow on his hand. After receipt of the injuries, Kadir ran a little distance and fell down in the land of Altaf Ali when accused Mannan went upto him and stabbed him in the back. After this the accused ran away and Abdul Kadir was brought to his house in dead condition.

(2.) The information about the aforesaid occurrence was given by P. W. 3 at about 9 A.M. on the date of the occurrence. When P. W. 3 had gone to the thana for the aforesaid purpose he had found the three accused persons there. From the evidence of 1.0. Nihar Kanti Roy choudhury, P.W. ii, it transpires that whereas he had received ejahar of this case at about 9 A.M. the accused had arrived at the Patrol Post at about 8.10 A.M. and had lodged an ejahar (Exhibit-i) and they were then in an injured condition. After the matter was investigated by the police, the three appellants were sent up for trial under sections 302/34 and 323/34 of the Indian Penal Code. Charges were accordingly framed. The first charge under section 302/34 dealt with the guilt of the accused in causing the death of Abdul Kadir and the second charge for voluntarily causing hurt to Abdul Gani. In the course or trial, the prosecution examined 11 (eleven) witnesses and the defence also produced one witness who testified about the injuries found on the person of the accused. At the close of the trial, the learned Sessions Judge, Now gong, being satisfied about the guilt of the accused persons convicted them under the aforesaid sections of law and awarded the sentence of imprisonment for life under sections 302/34 and R.I. for three months for the second offence. Feeling aggrieved the accused appellants have preferred this appeal.

(3.) We have been taken through the entire evidence led in the case by Shri Dey. He has submitted that the materials on record would tend to show that the occurrence had taken place not on the land of Abdul Rashid but on the land of Altaf Ali which indicated, according to the learned counsel, that the complainant party had acted as aggressor. This gave a right of private defence of property, as per the learned counsel. The second contenlion advanced by Shri Dey is that the injuries received by the accused persons gave them a right to defend their persons also against the aggressors. Shri Dey urged that two views being reasonably possible-the one which is favourable to the accused has to be adopted.