Jamaluddin vs State of Assam

M. Sharma, J.—This appeal has arisen from the impugned judgment and order passed on 11,5.93 and 13.5.93 by the learned Sessions Judge, Barpeta in Sessions Case No. 43 (B)/91 by which the Appellants were convicted u/s 302/34 and sentenced to imprisonment for life.

The prosecution case started with the First Information Report filed by the informant Lokman Hussain (P.W. 2) on 24.2.89, informing the murder of his father Chand Mia and paternal uncle Noai Dewani by the accused persons numbering 10 who faced trial being charged u/s 302/34 and 302/34 of the IPC.

From the First Information Report and the evidence on records the prosecution case stands like this:

Alabox Munchi P.W. 6 owned and possessed about 14 Bs. of land covered by annual patta (Ext. 3, 4 and 5) at Dankamari Char. Accused Hazarat as northern boundary man demolished the boundary of Alabox land. Being informed Alabox along with his brothers Chandmia and deceased Nowai, Phulbur, (P.W. 4), Raj (P.W. 1) and others went to the Daukamarichar on 24.2.89. They scaled the land but as the accused-boundary men were not present they decided to return home without scaling any more land. When they started leaving, the accused Appellants along with other accused persons (acquitted) being armed with lathi and ballam attacked the group of Alabox, Accused Appellant Jamal gave a lathi blow on the shoulder of Nowai and accused Majibar pierced his ballam in his belly. Accused Appellant Sadagar held the leg of Nowai and assaulted him with Dao. Nowai fell down and died. Seeing all these, Chand Mia proceeded towards the accused persons requesting them not to kill Nowai. But accused-Appellants Majibar pierced him with his ballam in hand into chest of Chand Mia. They also assaulted Alabox and his companions causing injuries and left the place.

During the trial out of 11 charged accused persons accused Jafar, Mosarak, Jamir and Ajibar were acquitted u/s 232 Code of Criminal Procedure by order dated 20.4.93 and remaining seven accused persons namely, Hazarat, Joinal, Siddique, Kashem, Sadagar, Mujibar and Jamaluddin were remained and their statements were recorded u/s 313 Code of Criminal Procedure. In the statement u/s 313 Code of Criminal Procedure accused Mujibar alleged that complainant party had set their houses on fire and looted the cattle. Accused Hajarat pleaded alibi and accused Jamaluddin alleged damage of their crops by the complainant party and that he went to the place to ask the complainant party not to destroy the crops. But no cross case was filed.

The defense summoned one doctor as defense witness but declined to examine him and any defense witness though accused wanted to adduce defense witness.

Mr. Mahanta submitted that the suggestions and the cross examination has made out a case of mutual dispute over land which resulted in the occurrence.

After the trial, the trial Court acquitted accused Hazarat, Joinal, Siddique and Kasem as the trial Court did not believe in their participation in the occurrence from the prosecution eye witnesses namely P.W. 1, 6, 3, 4 and 5. The accused-Appellants, Jamaluddin, Mazibar and Saudagar being found guilty u/s 302/34 on the basis of ocular evidence and the corroborating medical evidence, the trial Court convicted them under the said sections and sentenced them accordingly. They were acquitted of the charge u/s 323/34 as the injured persons were not examined in the trial.

Mr. Mahanta, learned Counsel (Amicus Curiae) for the accused Appellant has submitted that there is no ingredient u/s 302/34 IPC to convict the Appellants and sentence them as was done here. His further submission is that Appellant Sadagar and Jamal entitled to acquittal as prosecution failed to rope them u/s 34 IPC to the offence of murder as the involvement of these two accused Appellants did not indicate that there was meeting of mind to kill the deceased persons, that all the 11 accused persons were implicated u/s 302/149 and as except 3 Appellants other accused persons were acquitted, these two Appellants, namely Sadagar and Jamal are also entitled to same benefit.

In view of the above stand of the accused Appellants, evidence on record required to be appreciated to examine this issue.

P.W. 1, Habejuddin, P.W. 3 Riasuddin, P.W. 4-Fulbar Sk., P.W. 5-Mohmmad Ali, P.W. 6 Alabox Munchi are the eye witnesses to the occurrence.

Ocular version of P.W. 1 is that he was accompanied by deceased Noai and Chandmia and P.W. 3 Riasuddin and others, to Alabox''s lanc'' at Daukamari Char to scale the land of Alabox. When the scaling was going on he saw the accused Jamaluddin, his sons Majibar and Sadagar coming towards the said land, seeing this Chandmia told that it would be wise to go home and while they were returning he saw accused Jamal felled Nowai by hitting on his shoulder by lathi He died there; that he ran away from the place. His further evidence is that the quarrel took place in the southern place of the land in question; that dispute took place over land and that he was suffering from paralysis and could not take anything for about a year and cannot remember all the facts.

P.W. 3 is an eye witness who accompanied the complainant party. His evidence is that, their men scaled the land and found out the boundary of Allabox''s land. That Chandmia (deceased) told that as the oilier side (accused persons) were not present, they should not fix the pillar and they started returning. His further evidence is that Alabox and others took the way to Sanapur and he started to approach by the road running along the side of Sutir Pathar. That he then heard shouting of a woman telling "they are going to be killed." Turning back he saw accused Jamal with his two sons Majibar and Sadagar along with others standing Jamal with a lathi, Majibar with a falla and Sadagar with a Dao. Seeing them Nowai and others were returning, suddenly accused Jamal ran towards Nowai and gave a lathi blow on his shoulder. Accused Majibar who was standing nearby pierced a falla in die chest of Nowai. His further evidence is that Chandmia came forward to Nowai and accused Majib pierced his falla into the chest of Chandmia Accused Sadagar and Jamal started beating Chandmia.

P.W. 4 corroborated P.W. 3 on materials point-that Jamal gave lathi blow on the shoulder of Nowai and that Majibar pierced abdomen of Nowai and accused Sadagar by holding the leg beat Nowai with the dao.

The version of P.W. 3 was that injured Chandmia was taken to his residence on "Thela and that he died before reaching home: that the dead body of Nowai was lying in the place of occurrence-these statement have been corroborated by other witness.

P.W. 5 also corroborated on all vital points regarding participation of these three accused persons in the occurrence with the weapons they carried with them.

P.W. 6 Alabox is the brother of the two deceased persons. He was 86 years old at the time of giving evidence. He corroborated the other evidence on all vital points. He admitted that his eye sight was weak, that he saw many people coming, that he saw lathi in the hand of Jainal; that he could not notice what weapons were possessed by the accused persons. That one person pulled his lathi and felled him. He ran towards Nowai and Chandmia and that as he fell down and lying at a distance he did not see who assaulted Nowai and Chandmia, but they died in the incident. P.W. 7 is the son of P.W. 6 Alabox. He corroborated participation of both Jamal and Majibar with lathi and sark (Spear) and stated that Majibur pierced at the abdomen of Nowai.

P.W. 8 is the doctor who conducted die post mortem on the deceased persons. The injuries as indicated in the Post Mortem report are as follows:

Injury on the dead of Chandmia -

One deep penetrating injury found over the right side of the chest about 1/2" right to lateral to the mid line. The underlying 3rd and 4th right ribs injured and detached.

Direction is posterolaterally causing injury to the right pluera. Size of the injury 2"x 1/2"x8". Condition of lamyax, trachea healthy. Right lung found injured and collapsed. Left lung congested pericardimpale. Heart empty. Vessels empty.

In his opinion death is due to shock and haemorrhage as a result of the injury described.

19.0n the same day he also performed the post Mortem examination over the dead body of Nowai Dewani and found following injury "One deep penetrating injury over the. back of the chest" 1/2 below the lower end of the left scapula. Fifth rib found injured and detatched at its middle causing injury to the pleaura and lung. Left lung found injured and collapsed."

In his opinion death is due to shock and hemorrhage as a result of injury sustained. The injury is sufficient to cause death instantaneously. A Falla can cause such injury."

In his cross-examination this witness stated that only one injury was found on Chandmia. That the injury went upto back from the sign of bleeding.

Mr, Mahanta has submitted that the participation of accused Sadagar has not been proved from the Medical evidence and also from the Post Mortem Report as there was no cut injury on the leg. We have gone through the record and examined the original evidence recorded by the trial Court in vernacular (Assamese) and we have seen that the witnesses (P.W. 4 and P.W 5) clearly stated in Assamese that the accused Sadagar by holding the leg beat the Nowai with the Dao. In our opinion he did not inflict cut injury as he gave beating by the blunt side of the Dao. We therefore found the mistake in the trial Court''s view to this aspect of this evidence shown on record of the trial Court.

From the above discussion we hold that the prosecution was able to bring home the prosecution case beyond reasonable doubt.

Regarding the delay of submitting First Information Report and 3ome difference, we are of the view that trial Court''s finding on these points are based on appreciation of evidence and we are not inclined to lake different view on these points.

The point for decision before us, as insisted by Mr. Mahanta is whether the accused Appellants Jamal and Sadagar can be roped u/s 34 IPC with the offence u/s 302 IPC as their participation in the occurrence are negligible to cause death of the deceased persons.

The fact remain that the accused persons are from the same family i.e. Sadagar and Majibur are the sons of Jamal. The ocular narration against them are clear and direct.

The trial Court acquitted the other accused persons from the charge u/s 149 IPC for which he has given his reason and we find it right and upheld the same.

The submission of the Counsel mat these three accused Appellants can not be roped with Section 34 IPC as the ingredients are absent. The prosecution case started with the FIR filed by informant Md. Lokman (P.W. 2) on 24.2.89, informing the murder of his father Chandmia and paternal uncle Nowai by the accused persons numbering 10 who faced trial being charged u/s 302/34 323/34 IPC. From the FIR and the evidence on record prosecution case stands like this All box ( P.W. 6 ) owned and possessed about 14 B. of land covered by annual pattas at Dankamari Char. Accused Hajarat as northern boundary man demolished the boundary of All box land. Being informed. All box, along with his brother Chandmia, Nowai (deceased), Phulbar (P.W.4 ), Riaj (P.W. 3) and Habefujuddin (P.W. 1) and other went to the place on 24.2.89, They scaled the land but as the accused boundary man was not present they derided to return home without scaling any more land. When they started leaving die aecusec-uppellants along with other charged accused persons (acquitted) being armed with lathi and Ballam attack the group of Allabox. Accused-Appellant Jamal gave a lathi blow on the shoulder of Nowai and accused Appellant Mazibar pierced him with ballam in belly. Accused Appellant Sadagar held the leg of Nowai and assaulted him with the Dao.

Now the question is whether these three persons after acquittal other co-accused can be separated from the arena of Section 149 IPC and rope them with the act of murder by roping them with Section 34 I.P.C.

There is difference between object and intention. Both sections dealt with liability for constructive criminality. Both speak of liability for an offence not committed by the person charged under the penal section. Section 34 IPC speaks of common intention-previous meeting of mind by two or more persons. Whereas Section 149 IPC speaks of membership of die assembly at the crime of committing the offence. (Emphasis supplied). The distinction between these two sections are clear- common intention denotes concerted action and speak of prearranged plan and common object u/s 149 IPC is an act on the spur of the moment. The basis of offence u/s 149 IPC is mere membership of an unlawful assembly and some of die members found not participating in the offence and proved to be only viewers, they cannot be guilty of the offence; but Section 34, as said above, is based on participation in some action with the common intention of committing the crime.

In this case, conduct of the three accused persons who lead the party proved their common intention as they removed the boundary post erected between the land of both parties with an intention to encroach the land, they did not participate in the measurement of the land to fix out a solution of the boundary dispute, they assaulted the other land owner with a view to dispossess them. It is on record that when the prosecution party withdrew to make the measurement of the land and boundary, and started leaving the place, they were attacked.

The submission made by the learned Counsel for the Appellant that die two accused persons, particularly Sadagar can not be roped with Section 34 IPC is not sustainable as evidence on record has established their common intention in committing the offence. Section 34 lays a principle of joint liability in doing of a criminal act, the existence of which is to be found in existence of common intention animating the accused leading to the execution of the criminal act in furtherance of such intention. This Section provides that when it is difficult to distinguish between the acts of individual members of a party or to prove exact participation of an individual member, All participants deemed guilty, because of the presence of accomplices gives encouragement, support and protection to the person actually committing the Act.

In the instant case, these three persons combined in injuring the two deceased persons in such a manner that, each person engaged in causing the injury must know that the result of the one of them proved that the cumulative action resulted the death. On the materials on record establishes that they are guilty of principal offence.

In view of our above discussion, we hold that the three accused Appellants are rightly convicted roping them which Section 34 IPC and further we hold that the Appellants conviction cannot be modified to Section 304 Part-II on the ground of protection of life and property of accused persons.

Our discussion leads to the conclusion that the offence was preplanned by the accused Appellants to cause death of the complainant persons on grudge.

In the result the conviction and sentence awarded by the trial Court in Sessions Case No. 43 (B)/91 is upheld.

Appeal is dismissed.