ABDUL HANIF Vs. STATE OF ASSAM

JUDGEMENT

(1.) This criminal appeal is so preferred by the above named three accused/appellants under Section 374(2) of the Cr.P.C., being aggrieved by the judgment of conviction and sentence so passed by the learned Sessions Judge, Nagaon dated 6th of May, 1996 in sessions case No. 143(N-3)/92 by virtue of which the learned Sessions Judge has convicted the accused/appellants under Sections 302 read with Section 34 of the IPC and after convincing them thereunder, they have been sentenced to undergo R.I. for life and also to pay a fine of Rs.5,000/- in default, to undergo further R.I. for three months each. The period undergone by the accused/appellants in course of proceedings is also directed to be set off under the provisions of Section 428 of the Cr.P.C.

(2.) The prosecution story, in nutshell, is that on 23.11.90 at about 4 P.M., when Md. Jakir Hussain (P. W.-2) along with Abdul Gani (since deceased) was returning from Kachua bazar and had proceeded towards hardly about furlong from the Kachu P.S. which is located at Kachua bazar and both were proceeding towards their home, it is the accused/ appellants who coming from opposite direction, surrounded them and accused/ appellants Abdul Jalil and Abdul Mannas pulled out daggers which they were concealing in their garments (lungi) and inflicted dagger blows upon Gani Mia. Jakir Hussain (P. W.-2) as per prosecution case, somehow managed to catch hold another accused Abdul Hanif for a while but seeing this accused Abdul Jalil son of Surat Ali proceeded as to assault Jakir Hussain (P. W.-2) son of Md. Ramizuddin as a result of which Jakir Hussain (P.W-2) had no alternative but to release accused Abdul Hanif and then as per the further case of the prosecution, Abdul Hanif slashed the neck of Abdul Giani. Because of the injuries so sustained on the chest, neck and abdomen, Abdul Gani breathed his last. After inflicting the said injuries the accused/appellants are said to have retreated to the direction from which they had come. P.W-2 Md. Jakir Hussain son of Ramizuddin then ran to the Kachua PS. situated nearby hardly at a distance of 140 Meters and gave the details of the cognizable offence taking place being seen by him also naming the accused persons. It transpires that on the statement so given by this witness Md. Jakir Hussain. G.D. Entry No. 424 was so made and the police on the basis of the statement of Md. Jakir Hussain alter recording G.D. Entry, proceeded to the place of occurrence nearby and started investigation. At the spot, the full brother of the deceased gave his written report Md. Jalil by name on the basis of which formal FIR was so drawn up which is marked as Annexure-1 in course of trial. Abdul Jalil P.W-1 while giving the detailed report also cited Hazi Md. Musakat Ali and Moslem Uddin as witnesses and they figured as PWs 4 and 5 in course of trial. P.W-1 Abdul Jalil had also named Jakir Hussain )P.W-2) to be the person along with whom his full brother Abdul Gani (since deceased) was proceeding towards his home when the occurrence took place at about 4.10 P.M. while giving his statement. P. W-1 has also casually referred that his brother Abdul Gani was murdered because of the previous grudge in the hands of the named accused persons as the accused persons suspected the hand of Abdul Gani (since deceased) when sometime back the accused's father Surat Ali was so done to death and in the said murder because Abdul Gani (since deceased) also figuring as an accused. It further transpires that the police registered Kachua PS. Case No. 79/90 U/S 302/34 of the IPC and after the completion of the investigation, chargesheet was so submitted vide chargesheet No. 1/92 on 3.1.92 against the three accused persons figuring here as appellants. On the basis of the charge sheet so submitted, it further transpires that in GR Case No. 1861/90, cognizance of offence: was so taken against the accused/appellants and under the provisions of Section 209 of the Cr.P.C., the case record was so committed to the Court of sessions for their trial, The learned Sessions Judge framed charge against the above named three accused/appellants under Section 302 IPC read with Section 34 of the IPC for their intentionally causing the death of Abdul Gani in furtherance of their common intention though the accused/ appellants pleaded not guilty and claims to be tried. In course of trial, 7 prosecution witnesses have been examined whereas one D.W. is examined on behalf of the defence. Out of the P.Ws so examined, P.W.-l happens to be the full brother of deceased who is though not an eye witness to the occurrence, has come forward to say with regard to his rushing to the place of occurrence and seeing his full brother Abdul Gani in pool of blood, having severe injuries and dead. P.W-2 is, Jakir Hussain, the witness who at the time of occurrence as per the prosecution case; was returning home along with Abdul Gani and claims to have seen the occurrence from nearby, the time of occurrence being 4.10 P.M. i.e. day time, P.W-3 is Jalaluddin who also claims to be an eye witness and according to him he along with P. W.-4 Moslemuddin while was proceeding to the same direction from Kachua bazar by the same road and ahead them Abdul Gani (since deceased) and Jakir Hussain (P.W-2) and all were also proceeding at a short distance when those witnesses (P. W- 3) along with (P.W-4) as per their statements had the occasion to see the accused/appellants approaching from the opposite direction and brutally assaulting Abdul Gani with daggers. They have also stated that they came across Jakir Hussain P.W-2 when seeing occurrence running towards the police station, P. W.4 Md. Moslemuddin is another eye witness, who has also given his evidence on the same line as given by P.W. 3. P.W-5 Masakat Ali is a passersby though he has not seen the occurrence because of his not having the chance to see the actual assault though he being at comfortable distance had an occasion to locate the accused/appellants while escaping and running away having weapons in their hands and immediately after arriving at the place of occurrence, P.W.-5 found Abdul Gani dead. P.W.-6 is the Medical Officer who conducted the postmortem examination on the person of the deceased and postmortem report so prepared is proved and marked by this witness as Exhibit-5 and PW-7 is the Investigating Officer of this case. The statements of PW-2 Jakir Hussain who was accompanying Abdul Gani (since deceased) at the time of occurrence had also been recorded U/S 164 of the Cr.P.C. and the said statement is proved and marked as Exhibit-4 in course of trial. D-W 1 who is examined on behalf of the defence is on the point of alibi taken by one of the accused Hanif with regard to his being at Kampur bazar at the relevant time which has though been dis- believed by the learned Court below. The learned Court below after evaluating the evidence, oral and documentary available on record, has come to the conclusion that in course of trial, the prosecution had succeeded to establish the guilt of the above named accused/appellants up to the hilt and they were found guilty of committing the offence coming under the purview of Section 302/34 of the IPC and they are thus convicted and sentenced thereunder as detailed above. It was found by the learned Court below that murder of Abdul Gani was intentionally so committed in furtherance of their common intention, specific overtacts are also attributed against all the three accused/appellants coming under the purview of Sections 302/34 of the IPC for committing an offence of culpable homicide amounting to murder. It is against this judgment of conviction and sentence so passed, the accused/appellants have preferred this criminal appeal.

(3.) Mr. A.S. Choudhury, learned counsel for the appellants is heard at length.