{"id":130656,"date":"2004-06-05T00:00:00","date_gmt":"2004-06-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/md-makbul-hussain-md-harej-ali-vs-state-of-assam-on-5-june-2004"},"modified":"2015-11-06T06:40:23","modified_gmt":"2015-11-06T01:10:23","slug":"md-makbul-hussain-md-harej-ali-vs-state-of-assam-on-5-june-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/md-makbul-hussain-md-harej-ali-vs-state-of-assam-on-5-june-2004","title":{"rendered":"Md. Makbul Hussain, Md. Harej Ali … vs State Of Assam on 5 June, 2004"},"content":{"rendered":"
Gauhati High Court<\/div>\n
Md. Makbul Hussain, Md. Harej Ali … vs State Of Assam on 5 June, 2004<\/div>\n
Author: Ansari<\/div>\n
Bench: P Agarwal, I Ansari<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Ansari, J.<\/p>\n
1. By the impugned judgment and order, dated 6.1.2000, passed by the
\nlearned Sessions Judge, Morigaon, in Sessions Case No. 12\/1997, the
\naccused-appellants stand convicted under Sections 302 and 323 read with
\nSection 149 IPC and each of them stand sentenced to suffer, for their
\nconviction under Sections 302\/149, imprisonment for life with fine of Rs. 2000\/-
\neach and, in default of payment of fine, rigorous imprisonment for a further
\nperiod of six month and to suffer, for their conviction under Sections 323\/149
\nIPC, rigorous imprisonment for three months.\n<\/p>\n
2.The case against the accused-appellants, as unfolded at the trial, may,
\nin brief, be stated as follows:\n<\/p>\n
 On 29.9.1993 at about 7.30 am, the present accused-appellants along
\nwith accused Nasiruddin and Nizamuddin (since acquitted) came, armed with
\ndao, lathi, spear, etc., to the land of Abdul Khaleque, where Abdul Khaleque
\nused to reside with his family by constructing a house and asked Abdul
\nKhaleque and his family to leave, but Abdul Khaleque reacted by saying that
\nhe had already sold the land to Ramzan Ali and his family and Ramzan Ali and
\nhis family would not go out, whereupon the accused-appellant, Makbul,
\nordered the other accused, accompanying him, to beat Ramzan and others
\nand turn them out of the house. On being so asked by the accused\/appellant,
\nMakbul, the other four accused persons assaulted Abdul Khaleque with lathis
\nand when Ramzan came forward, he was given blow with a dao on his left
\nshoulder by the accused-appellant, Harej Ali, and the accused\/appellant,
\nHanif, stabbed Ramzan with a spear on his chest. On alarm being raised, the
\naccused-appellants fled away from the scene leaving Abdul Khaleque and
\nRamzan Ali in injured condition at the place of occurrence. Both the injured
\nwere taken to Jagiroad Police Station and therefrom, they were sent to
\nJagiroad Hospital. While injured Abdul Khaleque survived, injured Ramzan
\nsuccumbed to his injuries. Abdul Khaleque_s brother, Abdul Jabbar, lodged a
\nwritten Ejahar (Ext.1) at the said police station. Police accordingly registered a
\ncase and, on completion of investigation, laid charge-sheet against all the
\naccused persons aforementioned including the accused-appellant under
\nSections 147\/148\/149\/447\/448\/326\/302 IPC.\n<\/p>\n
3.During trial, when the charges framed under Sections 147,148 and 326
\nas well as 302 read with Section 149 IPC were explained to the accused
\npersons, they pleaded not guilty thereto, the case of the defence being, in
\nbrief, thus : The land, where the alleged occurrence took place, used to be in
\nthe possession of accused Makbul Hussain, father of the accused Hanif Ali,
\nHariz Ali, Nizamuddin and Nasiruddin alias Nasir, and on the day of
\noccurrence, at about 7.00 am, when the accused Nasiruddin, Nizamuddin,
\nHanif and Hariz were in their house along with their mother, Mustt. Haliman
\nNessa, Abdul Khaleque along with Ramzan Ali and others came to accused
\nMaqbuls house and asked the members of his family to get out of the house,
\nbut when Maqbuls family members refused to leave, they were attacked by
\nAbdul Khaleque and Ramzan. When Abdul Khaleque (PW-3) attempted to
\nassault accused, Nasir, with a spear, the spear accidently fell on Ramzan and
\ncaused injury on his person. The other accused persons too, namely, Nasir
\nand Hanif, sustained injuries and were medically examined. Thus, Ramzan
\n(since deceased) and Abdul Khaleque were the aggressors and the accused
\npersons were completely innocent. The defence also adduced evidence by
\nexamining 5 witnesses.\n<\/p>\n
4.On conclusion of the trial, the learned trial Court, on finding the accused
\npersons, facing the trial, guilty of the charges framed against them under
\nSections 302 and 323 read with Section 149 IPC, convicted the present
\naccused-appellants accordingly and passed sentences against them, as
\nhereinabove mentioned, but on account of the fact that the two of the accused
\npersons facing the trial, namely, Nasiruddin and Nizamuddin, were found
\nbelow the age of 16 years on the day of occurrence, they were released on
\nprobation of good conduct for two years. Hence, this appeal has been
\npreferred by those accused-appellants, namely, Maqbul Hussain, Hariz Ali and
\nHanif Ali, against whom sentences, as indicated hereinabove, have been
\npassed. As this appeal does not relate to accused Nasiruddin and Nizamuddin
\naforementioned, we do not deal with the legality or otherwise of their
\nconviction.\n<\/p>\n
5.We have heard Mr JM Choudhury, learned senior counsel, assisted by
\nMr BM Choudhury, appearing for the accused-appellants, and Mr FH Laskar,
\nlearned Additional Public Prosecutor, Assam.\n<\/p>\n
6. In support of their case, prosecution examined altogether 10 witnesses
\nand out of them PW-2 (Nurul Islam), PW-3 (Abdul Khaleque), PW-5 (Jaigun
\nNessa) and Abdul Rashid (PW-8) have been examined as eye witnesses to
\nthe alleged occurrence.\n<\/p>\n
7. Let us, first, deal with the evidence of Dr. Jugal Chandra Kalita (PW-6),
\nwho held autopsy over the dead body of Ramzan Ali on 30.9.1993. This
\nwitness’s findings are as follows:\n<\/p>\n
EXTERNAL APPEARANCE: A dead body of average built
\nmale, aged about 30 years, with blood-wet clothings and a tourniquet in
\nsitu in left upper arm above a transverse incised wound around the arm.
\nRigor mortis present on lower limbs.\n<\/p>\n
Two major injuries are found (1) An incised injury transversely
\ndividing almost all muscles, veins and brachial artery except the
\nHumerus just above the left elbow joint. A Tourniquet is present above
\nthe injuiry. A haemotoma is present between the tourniquet and
\nshoulder joint (2) A penetrating wound at 4th intercostals space of chest-
\nwall on left side causing haemotoma left lung and left side
\nhaemothoras.\n<\/p>\n
ABDOMEN: (A) walls, peritoneum, mouth, pharynx, esophagus,
\nsmall and its contents, large intestine and its contents, liver, spleen,
\nkidneys, organs of generation, external and internal Healthy. (B).
\nStomach and its contents Healthy, full of food matters. (C) Bladder
\nHealthy, empty
\nCRANIUM AND SPINAL CANAL: Scalp, skull, vertebrae,
\nmembrane, brain and spinal cord Healthy.\n<\/p>\n
THORAX: (A) Walls, ribs and cartilages A penetrating wound,
\nsize about = slit-like, present in left 4th inter-costal space just left to
\nnipple line. (B) Pleurae Perforated at the site of the penetrating
\nwound. (C) Larynx and tracheae right lung Healthy. (D) Left lung
\nA haematoma present and haemothorax on the same pleural space. (E)
\nPericardium, Health, Vessels Healthy.\n<\/p>\n
MUSCLES, BONES AND JOINTS: (A) Injury, disease or
\ndeformity An incised wound on the left arm just above elbow joint
\ncausing division of almost all muscles, brachial artery, veins and
\nnerves. Deformity absent. (B) Fracture, dislocation absent<\/p>\n
8.In the opinion of PW-6, the injuries aforementioned were ante-mortem
\nin natureand the death was caused due to shock and hemorrhage in addition
\nto respiratory insufficiency caused by the injuries sustained.\n<\/p>\n
9.The findings of PW-6 and his opinion with regard to the number and
\nnature of injuries sustained by the deceased, Ramzan, and cause of his death
\nhave not been disputed either by the prosecution or the defence. This apart,
\nthe evidence of PWs.-2,3, 5 and 8 coupled with the evidence of the informant
\n(PW-1), Abdul Jabbar, make it clear that Ramzan sustained injuries on his
\nperson, he was taken to Jagiroad Hospital, where he succumbed to his
\ninjuries.\n<\/p>\n
10.Thus, the medical as well as the oral evidence on record clearly show
\nthat Ramzan Ali died as a result of the injuries found on his person by PW-6.\n<\/p>\n
11.Bearing in mind what have been pointed out hereinabove, when we
\ncome to the evidence of Abdul Khaleque (PW-3), who was one of the injured,
\nwe find that according to his evidence, he had a little more than 8 bighas of
\nland and out of the same, he had sold 3 bighas of land to Ramzan (since
\ndeceased) and his brother, Nasir and Matibur, and after purchasing the said
\nland, Ramzan started leaving there with his wife by constructing a thatched
\nhouse thereon and it is on this land that the alleged occurrence took place.
\nThis witness has deposed that on the day of occurrence, i.e., 29.9.1993, at
\nabout 7\/7.30 am, when he was ploughing the remaining part of his land near
\nthe place of occurrence, Ramzan, Nur Islam and Rashid were also ploughing
\ntheir own land and after some time Ramzan_s wife, i.e. Jaigun Nessa (PW-5)
\ninvited all of them to have rice in her house and all of them including PW-3
\ncame to the house of Ramzan to take rice, but accused Harej, Maqbul, Hanif,
\nNizamuddin and Nasiruddin alias Nasir, came their, armed with dao, lathi,
\nspear, etc., and asked Ramzan, his family members and also PW-3 to leave
\nthe house. PW-3 has also deposed that when he told the accused persons
\nthat since he had already sold the land to Ramzan and his family, he would
\nnot go out, accused Maqbul ordered the other accused persons saying, Beat
\nthese people up and turn them out of the house, whereupon the remaining
\nfour accused persons assaulted him (PW-3), Nasiruddin having given him
\n(PW-3) a blow with lathi on his head and he (PW-3) fell down. PW-3 has
\nfurther deposed that when he (PW-3) fell down on the ground, Ramzan asked
\nas to why they had assaulted him (PW-3) and at that point of time, accused
\nHarij gave a blow with dao on Ramzan_s shoulder and accused Hanif stabbed
\nhim with a spear on his chest, whereupon PW-3 and others raised alarm and
\nthe accused persons fled away from the scene. It is in the evidence of PW-3
\nthat injured Ramzan was taken to Jagiroad Police Station and after
\nquestioning him, police sent him to Jagiroad Hospital, but, at about 4.00 pm
\nthat very day, Ramzan died. It also in the evidence of PW-3 that he (PW-3) too
\nsustained bleeding injury because of a cut in his head and underwent
\ntreatment at the hospital for 3-4 days.\n<\/p>\n
12.Close on the heels of the evidence of PW-3 (Abdul Khaleque), PW-5
\n(Jaigun Nessa) has deposed that her husband, Ramzan, had purchased from
\nAbdul Khaleque (PW-3) the land, where she used to live with her husband and
\nothers in a house. As regards the occurrence, PW-5 has deposed that on the
\nday of occurrence, at about 7.00 am, her husband, Ramzan, accompanied by
\nNurul Islam (PW-2) and Abdul Rashid (PW-8), was ploughing the land and
\nAbdul Khaleque (PW-3) was also ploughing his land located nearby. PW-5 has
\nalso deposed that she called her husband, Ramzan, Abdul Rashid (PW-8),
\nNurul Islam (PW-2) and Abdul Khaleque (PW-3) to take their meal and when
\nthey were washing their hands and feet in the courtyard to have their meals,,
\nthe accused persons, namely, Maqbul Hussain, Harej Ali, Hanif Ali, Nasiruddin
\nalias Nasir and Nizamuddin, came there. Accused Maqbul ordered the other
\naccused persons to turn them out from the house. PW-5 has further deposed
\nthat Ramzan came to the door steps of the house and told the accused
\npersons that he would not go out, because he had purchased the land,
\nwhereupon accused Hariz hit Ramzan on his left arm with a dao and Hanif
\nstabbed Ramzan with a spear on his chest It is in the evidence of PW-5 that
\naccused, Nasiruddin, hit Abdul Khaleque on his head with a dao and Abdul
\nKhaleque fell down, she raised hue and cry, whereupon the accused persons
\nfled the scene with their weapons. It is also in the evidence of PW-5 that they
\ntook Abdul Khaleque and her husband, Ramzan, to hospital, but her husband
\ndied on the very day of occurrence.\n<\/p>\n
13.Broadly in tune with the evidence of PWs. 3 and 5, Nurul Islam (PW-2)
\nhas deposed that at the time of occurrence, he was working along with Abdul
\nRashid (PW-8) and the deceased, Ramzan, at the farm house, and Abdul
\nKhaleque ( PW-3) was also present with them, PW-2 has also deposed that
\nRamzan’s wife, Jaigun Nessa (PW-5) was, at that time, inside the house, the
\naccused persons came to the place of occurrence and asked them to go out,
\nAbdul Khaleque (PW-3) told them that the land and house, in question,
\nbelonged to him, he had sold the same to Ramzan and they would not go.
\nPW-2 has further deposed that, at this stage, accused Hanif hit Ramzan with a
\nspear on the left side of his chest and accused Harij gave a blow with dao on
\nhis left hand and the other accused persons hit Ramzan with lathi. It is in the
\nevidence of PW-2 that accused Nizamuddin hit Abdul Khaleque (PW-3) with a
\nlathi and after so assaulting Abdul Khaleque (PW-3) and deceased, Ramzan,
\nthe accused persons left, the two injured were, first, taken to Jagiroad police
\nstation and they were taken from there to Jagiroad Hospital, where Ramzan
\ndied.\n<\/p>\n
14.So far as PW-8 (Abdul Rashid), is concerned, his evidence is that he
\nhad been ploughing the land that they had purchased from Abdul Khaleque
\n(PW-3), who was also ploughing his own land nearby and Abdul Khaleque
\n(PW-3) had his house on the land, which the deceased, Ramzan, had
\npurchased and inside the said house was present Ramzan’s wife (PW-5)
\npreparing meals. PW-8 has deposed that at about 7.00\/7.30 am, on being
\ncalled by Ramzan’s wife to take rice, they all came to the courtyard of the
\nhouse and when they were washing their hands and feet, accused persons,
\narmed with lathi, dao and spear, arrived there, accused Maqbul asked the
\nother accused persons to beat and turn them out of the house, whereupon
\naccused Nasiruddin hit Abdul Khaleque on his head with a lathi and when
\nRamzan offered resistance, accused Harej hit him with a dao on his left hand
\nand accused Hanif Ali stabbed him on his chest. It is in the evidence of PW-8
\nthat Ismail Ali and others arrived there, the injured were taken to hospital,
\nwhere Ramzan Ali died at about 2.00\/3.00 pm. <\/p>\n
15.Coming to the evidence of PW-1 (Abdul Jabbar), who is the informant in
\nthis case, we find from his evidence that on being informed about the
\noccurrence by his son, Abu Kasem, he went to Jagiroad Hospital, where he
\nfound Ramzan with his injuries on the left hand and chest and Abdul
\nKhaleque with cut injuries on his head and, upon making enquiry, he was
\ninformed by Nur Islam (PW-2) and Abdul Rashid (PW-8) that Hariz, Hanif,
\nNasir and Nizam had injured them, whereupon he lodged the Ejahar. It is also
\nin the evidence of PW-1 that he lodged the Ejahar after Ramzan’s death.\n<\/p>\n
16.PWs-2, 3, 5 and 8 have been put to cross-examination by the defence
\nat length. What have, however, remained unshaken in the evidence of these
\nwitnesses is that accused Hanif stabbed Ramzan with a spear on his chest
\nand accused Hariz gave a blow with a dao on Ramzan_s arm. These are
\nprecisely the two injuries, we notice, which have been found by PW-6 on
\nRamzan’s dead body. Hence, the evidence given by these witnesses to the
\neffect that Ramzan was hit by other accused persons with lathi cannot be
\nbelieved. Similalrly, the consistent evidence of these witnesses is that Abdul
\nKhaleque was given a blow on his head with a lathi by Nasir. In this regard,
\nthough PW-5 deposed that Abdul Khaleque was assaulted by the accused
\nNasir by a dao, she receives no corroboration of her assertions from any of the
\nwitnesses. It also surfaces unshaken from the evidence of these witnesses
\nthat accused Maqbul Hussain, Hanif, Hariz, Nizam and Naser came to the
\nplace, where the occurrence took place, Hariz had a dao in his hand and Hanif
\nhad a spear with him. As regards the assault on Abdul Khaleque, it is of
\nimmense importance to note that when Khaleque’s own evidence is that Nasir
\nhit him with lathi on his head, PW-5 claims that Khaleque was given a blow
\nwith a dao by accused Nasir. Belying both PW-3 and PW-5, PW-2 claims that
\nit was accused Nizam, who hit Khaleque with a lathi on his head. PW-8 also
\nclaims that Khaleque was hit with a lathi on his head by accused Nasir.
\nSituated thus, in our opinion, it is difficult to believe that Abdul Khaleque was
\nassaulted on his head by accused Nasir and\/or accused Nizamuddin.\n<\/p>\n
17.Coupled with the above, the evidence given by PW-2 shows that the
\nfarm house, where Ramzan started living with his wife, was purchased by
\nRamzan from Abdul Khaleque along with the land, where the said farm house
\nstood, whereas the evidence of Khaleque (PW-3) is that after purchasing the
\nland, in question, Ramzan started living with his wife by constructing a
\nthatched house thereon. Even the evidence of PW-5 is to the effect that her
\nhusband, Ramzan, had purchased the house standing on the land from
\nKhaleque meaning thereby that the house, in question, was not built by
\nRamzan. This assertion of PW-5 is contrary to what Khaleque claimed. When
\nthis glaring inconsistency in the evidence of the prosecution witnesses is
\nconsidered in the light of the evidence, which has clearly emerged from the
\nrecord and considered by learned trial Court, we find that not only Halima, wife
\nof accused Maqbul, but also accused Hanif Ali and accused Nasiruddin were
\nmedically treated for the injuries sustained by them on their persons, the
\ninjuries on Halima were grievous caused by blunt object and the injuries on
\naccused Hanif and accused Nasir were simple, the same having been caused
\nby blunt object. These injuries have not been explained by the prosecution
\nnor is there any explanation discernible, in this regard, from the evidence on
\nrecord. The inference, therefore, is that there was mutual assault leading to
\nthe injuries sustained by not only PW-3 (Abdul Khaleque) and Ramzan (since
\ndeceased), but also Halima, accused Harij and accused Hanif.\n<\/p>\n
18.Coupled with the above, there was, admittedly, a cross case filed by the
\naccused persons with regard to the same occurrence naming Abdul Khaleque
\nand others as accused. It is also of paramount importance to note that
\naccording the evidence, which has emerged from the cross-examination of
\nPW-3, is that the land, in question, was an annual patta land and the land had
\nbeen under attachment, though he claims that this land was brought under
\nattachment subsequent to his selling of the land. That there was a dispute
\nbetween both the parties with regard to the ownership and possession of the
\nland is apparent from the evidence on record.\n<\/p>\n
19.What is also impossible to ignore, which we find has not been given
\nimportance to by the learned trial Court, is that according to the evidence of
\nPWs-2, 3, 5, and 8, both the injured, namely, Ramzan and Abdul Khaleque
\nwere, first, brought to Jagiroad police station. It is in the evidence of PW-3,
\nwho himself was injured, that the police interrogated them and, then, sent
\nthem to hospital and it was at the hospital that in the afternoon, on that very
\nday, Ramzan died. Thhe FIR was, admittedly, lodged by Khaleque’s brother,
\nAbdul Jabbar (PW-1) after the death of Ramzan, for, the informant himself has
\ndeposed that he lodged the FIR after the death of Ramzan. What was the
\ninitial information, which was given to the police by the said injured and the
\nalleged eye witnesses accompanying them ? This question has not been
\nanswered by the prosecution and no endeavour has been made by them to
\nshow as to what was done by the police at the police station before sending
\nthe injured to hospital and as to what information was gathered by the police
\nby interrogating the injured and those, who had accompanied them to police
\nstation, before they were sent to the hospital.\n<\/p>\n
20.Situated thus, we find that the prosecution has not unfolded the
\ncomplete picture of the occurrence at the trial and that the prosecution’s case
\nsuffers from suppression of some material facts. What has, however, emerged
\nunassailed from the evidence on record is that there was a dispute between
\nthe parties with regard to the land, where occurrence took place, both the
\nparties laid claim of ownership and possession over the land, in question,
\npersons belonging to both the groups sustained injuries in the occurrence.
\nThus, while Ramzan sustained injuries, which caused his death, Khaleque,
\naccused Hanif, accused Nasir and their mother, Halima did not sustain very
\nserious injuries except that Halima sustained fracture of her 8th and 9th ribs.\n<\/p>\n
21.In a situation as depicted above, could it be said that the accused
\npersons, though 5 in number, had formed unlawful assembly with the common
\nobject of intentionally causing the death of Ramzan? The answer to this crucial
\nquestion is found in the evidence of the eye witnesses. In this regard, the
\nevidence of Khaleque (PW-3) is that Maqbul ordered other accused persons,
\nBeat these people up and turn them out from the house. Jaigun (PW-5)
\nhas deposed in this regard, that accused Maqbul ordered other accused
\npersons to turn them (Ramzan and others) out of the house. Nurul Islam (PW-\n<\/p>\n
2) attributes no such statement to accused Maqbul and PW-8 has supported
\nPW-3 by saying that accused Maqbul asked the other accused persons to
\nbeat and turn them (Ramzan and others) out of house.\n<\/p>\n
22.In view of the fact that PW-2, who was one of the persons present at
\nthe place of occurrence, does not support the claim of PW-3 and PW-8 that
\nMaqbul asked other accused persons to beat and turn out Ramzan and others
\nfrom the house and when even PW-5 does not claim that Maqbul had asked
\nother accused persons to beat them, her evidence, rather, being to the effect
\nthat Maqbul had merely asked other accused persons to turn them out of the
\nhouse, we have to determine if the accused-appellant, Maqbul shared any
\ncommon object of intentionally causing death of Ramzan and\/or any one else.
\nWhen a person asks another person to turn a person out of the house, it
\nlogically follows that the instruction and\/or order so given is not to kill the
\nperson or cause death of the person. Hence, while it is doubtful, in the face of
\nthe inconsistent evidence given in this regard by the prosecution witnesses,
\nthat Maqbul had ordered other accused persons to turn Ramzan and others
\nout of the house, yet even if one has to believe the same, the fact remains that
\nthere is no evidence on record that Maqbul asked other accused persons to
\nkill Ramzan or any one. This apart, though the evidence of the eye witnesses
\nis to the effect that apart from Hanif and Harij, who gave spear and dao blows
\non Ramzan, other accused persons also assaulted Ramzan by lathi, the same
\nis not supported by the medical evidence on record. The indication, therefore,
\nis that there was no common object and, consequently, there was no
\nformation of unlawful assembly. When there is no consistent evidence that
\naccused Maqbul had asked other co-accused to even beat Ramzan and
\nothers, the possibility cannot be excluded that some of the accused persons,
\nsuch as Maqbul, might have intended to merely scare and\/or frighten Ramzan,
\nKhaleque and others cannot be completely ruled out.\n<\/p>\n
23.What follows from the above discussion is that accused Maqbul, Harij,
\nHanif, Nasir and Nizam, who were five in number, had no common object and,
\nhence, there was no formation of any kind of unlawful assembly. So far as
\naccused Maqbul is concerned, he is neither convincingly proved to have given
\nany order or instruction to assault any one nor is there any cogent evidence of
\nhis having caused injury to any one. We, therefore, find that his conviction, in
\nthe face of the evidence on record, either under Section 302 and\/or Section
\n323 IPC is not sustainable.\n<\/p>\n
24.Turning, however, to the case of accused-appellants, Hanif and Harij,
\nwe find that the evidence on record convincingly prove that both of them dealt
\nsuch blows with deadly weapons, such as, spear and dao with the intent to
\ncause such injuries, which were likely to cause death. However, these
\nassaults on Ramzan were in the course of mutual assaults and since there
\nwas mutual assault between the parties, the acts of these two accused-
\nappellants constituted offence under Section 304 Part-I read with Section 34
\nIPC inasmuch as both of them shared the intention of causing such injuries on
\nRamzan, which could have resulted into his death.\n<\/p>\n
25.In the result and for the reasons discussed above, this appeal partly
\nsucceeds. The accused-appellant, Maqbul Hussain, is held not guilty of the
\noffence under Section 302 and\/or Section 323 IPC and he is acquitted of the
\nsame. He be set at liberty forthwith.\n<\/p>\n
26.The accused-appellants, Hanif and Harej, are held not guilty of the
\noffence under Sections 302\/323\/149 IPC, but they are found guilty of having
\ncommitted the offence under Section 304 Part-I read with Section 34 IPC and
\nthey stand convicted accordingly. The conviction of the accused-appellants,
\nHanif and Harej, shall accordingly stand converted to one under Section 304
\nPart-I read with Section 34 IPC and they are sentenced to suffer rigorous
\nimprisonment for 7 years with fine of Rs.1000\/- each and, in default of
\npayment of fine, to suffer rigorous imprisonment for a further period of one
\nmonth.\n<\/p>\n
27.With the above observations and directions, this appeal shall stand
\ndisposed of.\n<\/p>\n
28.Send down the LCRs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gauhati High Court Md. Makbul Hussain, Md. Harej Ali … vs State Of Assam on 5 June, 2004 Author: Ansari Bench: P Agarwal, I Ansari JUDGMENT Ansari, J. 1. By the impugned judgment and order, dated 6.1.2000, passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 12\/1997, the accused-appellants stand convicted under Sections […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[15,8],"tags":[],"class_list":["post-130656","post","type-post","status-publish","format-standard","hentry","category-gauhati-high-court","category-high-court"],"yoast_head":"\nMd. Makbul Hussain, Md. 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