N. Kotiswar Singh, J
1. Heard Mr. N. Haque, counsel for the appellant. Also heard Mr. A. Ahmed, learned counsel appearing for the respondent Nos.1â€"7 and Mr. P.
Borthakur, learned Additional Public Prosecutor, Assam, appearing for the State/respondent No.8.
2. The present appeal has been filed by the complainant (appellant herein) being aggrieved by the acquittal of the accused persons (respondent Nos.1
to 7) vide impugned judgment dated 19.02.2018 passed by the learned Additional District and Sessions Judge, Fast Tract Court, Hojai, Sankardev
Nagar in Sessions Case No. 275/2013 under Sections 148/149/447/323/302 of the IPC by giving benefit of doubt.
3. The aforesaid criminal proceeding was initiated on a complaint lodged by the present appellant, Md. Abdul Goni before the Officer-in-Charge of
Murajhar Police Station on 27.03.2012 alleging that at around 7:00 A.M. on 24.03.2012, the accused persons, namely, (1) Sibir Ahmed, S/o- Mukaddas
Ali; (2) Misbah Uddin, S/o Akaddas Ali; (3) Taz Uddin, S/o Mukaddas Ali, (4) Nasim Uddin, S/o Akaddas Ali; (5) Akaddas Ali, S/o Late Madarish
Ali; (6) Muktar Uddin, S/o Mukaddas Ali and (7) Abadur Rahman, S/o Akaddas Ali, (respondent Nos.1-7) started erecting a house on the land owned
and possessed by him. It was alleged that as his father Md. Jamir Uddin prevented them (respondent Nos.1-7) from constructing the house, the
accused persons hacked his father with sharp dao(s) and when the appellant went there to save his father Jamir Uddin, the accused persons also
struck him with iron rod(s). The complainant also alleged that the accused persons had assaulted his wife Muslima Begum and mother Golapjan
Begum, causing injuries to them.
4. On the basis of the said complaint an F.I.R. under Murajhar P.S. Case No. 68/2012 under Sections 143/447/325/326 IPC was registered. After the
death of the deceased Jamir Uddin at hospital, the offence under Section 302 IPC was added to the F.I.R.
5. On completion of the investigation, charges were framed against the accused persons, namely, (1) Sibir Ahmed, (2) Taz Uddin, (3) Muktar Uddin
(4) Abadur Rahman (5) Misbah Uddin, (6) Md. Nachim Uddin (7) Akaddash Ali, and (respondent Nos.1-7) holding that the accused persons
(respondent Nos.1-7) on 24.03.2012 at 7:00 A.M. formed an unlawful assembly armed with lethal weapons to commit an offence and thereby
committed an offence punishable under Section 148 of the IPC.
Secondly, that the accused, on or about 24.03.2012 at 7 A.M. had a common object to cause hurt to Jamir Uddin, Muslima and Golapjan Bibi and
thereby committed an offence punishable under Sections 149 and 34 of IPC.
Thirdly, the accused, on or about 24.03.2012 at 7 A.M. caused trespass into the property of Md. Abdul Goni and thereby committed an offence
punishable under Sections 447 and 34 of IPC.
Fourthly, they, on or about 24.03.2012 at 7 A.M. murdered Md. Jamir Uddin and thereby committed an offence punishable under Sections 302 and 34
of IPC.
Lastly, they, on or about 24.03.2012 at 7 A.M. caused voluntarily hurt to Muslima Begum and Golapjan Bibi and thereby committed an offence
punishable under Section 323 and 34 of IPC.
6. The prosecution examined as many as 9(nine) witnesses to substantiate the charges and accused in defence adduced 3(three) witnesses.
7. The accused denied their involvement in the aforesaid case. In the statements recorded under Section 313 CrPC they alleged that the complainant
had made false allegations against them.
8. The accused Misbah Uddin (respondent No.5) stated in his statement recorded under Section 313 Cr.P.C. that his maternal uncle Sirazuddin had
gifted the disputed land to his mother and deceased Jamir Uddin was his maternal uncle. He stated that on the day of the incident, as he went to the
land to construct a shop thereon, the complainant’s side resisted him whereupon, an altercation broke out there. He stated that however, he could
not say how the deceased Jamir Uddin died later on.
9. The other accused also took similar plea in their statements recorded under Section 313 Cr.P.C.
10. The Trial CouRt after appreciating the evidences on record had held that the accused had assaulted the mother of the informant as well as the
father who suffered grievous injuries and thereafter, he died in the hospital.
11. The Trial Court noted that the accused and the victims were relatives and there was a dispute over the ownership of a plot of land where the
accused had started construction over the disputed land and as such, there is a doubt about the commission of the offence of criminal trespass by the
accused persons on the relevant day. Further, the Trial Court held that the incident happened in the heat of the moment due to altercation amongst the
parties over a disputed land and as such, there was no pre-meditation to commit murder or cause injury to the victims.
12. The Trial Court also noted that the deceased Jamir Uddin died after 21 days of his treatment and the Trial Court noted that the accused did not
use sharp edge of dao at the time of assault and as such, it cannot be said that there was any intention to cause death of the deceased Jamir Uddin.
13. The Trial Court also held that there is vagueness as to who had actually caused injuries to the victims and in what manner.
Accordingly, the Trial Court held that the prosecution had failed to bring home the charges against the accused beyond reasonable doubt and
accordingly, acquitted them by giving benefit of doubt.
14. The conclusion and reasoning of the Trial Court in acquitting the accused can be seen from para Nos.10 and 11 of the impugned judgment dated
19.02.2018 and accordingly, the same is reproduced hereinbelow.
“10. After careful scrutiny of evidence on record, it has come to surface that the dispute has cropped up in respect of a plot land was in the vicinity
of informant house. On 24.03.2012 at about 7 a.m. the accused persons started to construct a house on the land possessed by him. When his father,
Md. Jamir Uddin obstructed in constructing the house by the accused persons then, then the accused person inflicted injury with a sharp Dao and
caused grievous injuries. When the informant went to save his father, then the accused persons inflicted injuries to the informant with Rod. The
accused persons also assaulted the wife and mother of the informant. As a result, all of them sustained injuries. The father of the informant sustained
grievous injuries. Some of the local people took him to hospital for treatment. Subsequently, father of the informant, Jamir Uddin died in the hospital.
The said has been corroborated by all the prosecution witnesses and thus, their evidences are found trust worthy and reliable in absence of material
contradiction. However, there is a acute evidence that how and who had specifically caused injuries to the victims and deceased, Jamir Uddin.
Undoubtedly, the accused and victims are relatives and the subject of dispute was the ownership of a plot of land where the accused persons suddenly
started construction over the said plot of land. It’s quite apparent from the evidence on record that neither of the parties could show their prima-
facie title over the said plot of land thus, there is nagging doubt on the commission of criminal trespass by the accused persons on the relevant day of
occurrence. Further, it need be stated that in criminal liability “Mensrea and Actus reas’ shall be proved. In the instant case, I find that
everything had happened in the hit of moment due to hot altercation in respect of disputed land. There was no pre-meditation, as such to commit
murder or cause injury to the victims. The deceased Jamir Uddin died after 21 days of treatment in the hospital. The occurrence took place when the
deceased obstructed the accused persons from construction in which accused persons had bonafide belief that the said plot of land belonged them.
Further, it’s evident that accused had not used the sharp edge of ‘Dao’ at the time of assault and thus, it vivid that accused persons had no
intention to caused death of Jamir Uddin. In the present case, the charges are framed against 7 (seven) accused persons. The prosecution evidence is
associated with vagueness to the extent who had caused injuries to the victims in what manner. On such un-explanation of their ‘actus reas’
leads to conclusion that the prosecution has failed bring home the alleged offences beyond all reasonable doubt and thus, the accused persons are
entitled to the benefit of doubt.
11. In totality on evidence on record and assessment thereof, this court arrived at the conclusion that the prosecution has failed to prove the alleged
offences beyond all reasonable doubt. Therefore, this Court holds the accused Md. Sibir Ahmed, Md. Tazuddin, Md. Kuktaruddin, Md. Abadur
Rahman @ Abdul Haque, Md. Misbauddin, Md. Nachim Uddin and Md. Akahoddos Ali are not guilty of the offence under sections-148/447/323/302
of Indian Penal Code, 1860 and they are acquitted and set at liberty forthwith.â€
15. Mr. N. Haque, learned counsel for the appellant has submitted that the Trial Court had committed an error which is apparent on the face of the
record as clearly evident from para No.10 of the judgment referred to above.
16. Learned counsel for the appellant also submits that though the accused were acquitted, the Trial Court at the same time came to the conclusion
and gave the finding that the accused persons had assaulted the mother of the informant as well as the father by inflicting injury with a sharp dao and
caused grievous injuries which had been corroborated by all the prosecution witnesses and the evidences were found trustworthy and reliable, in
absence of material contradictions.
In this regard, para No.10 of the impugned judgment dated 19.02.2018 as produced above in para No.14 of this judgment may be adverted to.
Therefore, the finding by the Trial Court that merely because the incident happened in a heat of the moment and also because there was no clear
evidence as to who had actually caused the injury to the deceased, the learned Trial Court gave the benefit of doubt to the respondent Nos.1-7 and by
acquitting them, which is in our view is erroneous.
17. It has been submitted by the learned counsel for the appellant that if the Trial Court came to the conclusion that the accused had caused the
aforesaid injuries and since there is evidence that the deceased died after receiving said injuries, there was no reason why the accused could not have
been convicted under the aforesaid charges. It has been further submitted that, even if the incident had happened during the altercation over the
disputed land and in the heat of the moment, as observed by the Trial Court, the Trial Court could have convicted them for committing culpable
homicide not amounting to murder under Section 304 of IPC.
18. Accordingly, it has been submitted that the decision rendered by the Trial Court requires to be interfered with. It has been further submitted that
this Court as the Appellate Court can re-appreciate the evidences and come to its own conclusion in spite of giving benefit of doubt to the accused by
the Trial Court.
19. It has been submitted that in view of the evidences on record, which have been also accepted by the Trial Court, there was no reason why the
accused persons should have been acquitted from all charges by the Trial Court.
20. It has been submitted that there are evidences on record that it was the accused who had assaulted the deceased, Jamir Uddin and his wife
Golapjan Begum and they suffered grievous injuries and as such, the accused can certainly be convicted under Section 304 IPC, if not under Section
302 IPC.
21. In response, the learned counsel for the respondents/accused has submitted that the finding arrived at by the Trial Court cannot be said to be
perverse which would warrant interference by this Court to convict the accused by setting aside the order of acquittal.
22. In this regard, relying on several decisions, the learned counsel for the respondent Nos.1-7 has submitted that in an appeal for acquittal, the High
Court in exercise of the appellate jurisdiction has to be extremely careful and can reverse an acquittal only when it is found that the finding arrived by
the Trial Court is perverse.
23. Learned counsel for the respondent Nos.1-7 has placed reliance on following decisions as regards the general principle relating to the powers of
the Appellate Court while dealing with appeal against an order of acquittal.
23.1 Chandrappa and Ors. Vs. State of Karnataka, [(2007) 4 SCC 415]
In Para No. 42 of Chandrappa (supra) it was held as follows,
“42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an
appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence
before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted
conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to
curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the
presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence
is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.â€
23.2 Pulicherla Nagaraju alias Nagarja Reddy Vs. State of A.P., [(2006), 11 SCC 444].
In Para No.15 of Pulicherla Nagaraju (supra) it was held as follows,
“15. It is now well settled that the power of the High Court in an appeal from acquittal is no different from its power in an appeal from conviction.
It can review and consider the entire evidence and come to its own conclusions by either accepting the evidence rejected by the trial court or rejecting
the evidence accepted by the trial court. However, if the High Court decided to depart from the conclusions reached by the trial court, it should pay
due attention to the grounds on which acquittal was based and state the reasons as to why it finds the conclusions leading to the acquittal,
unacceptable. It should also bear in mind that
(i) the presumption of innocence in favour of the accused is fortified by the findings of the trial court; (ii) the accused is entitled to benefit of any
doubt; and (iii) the trial court had the advantage of examining the demeanour of the witnesses. The crux of the matter, however, is whether the High
Court is able to give clear reasons to dispel the doubt raised, and reject the reasons given by the trial court [See : Sher Singh vs. State of U.P. , AIR
1967 SC 1412; Dargahi vs. State of U.P., AIR 1973 SC 2695; Ravinder Singh vs. State of Haryana , AIR 1975 SC 856; and Labh Singh vs. State of
Punjab, AIR 1976 SC 83].
23.3 As to what amounts to perversity has been also explained by Hon’ble Supreme Court in Chaman Lal Vs. the State of Himachal Pradesh,
[Criminal Appeal No. 1229 of 2017, decided on 03.12.2020].
In Para Nos.9.2 and 9.3 of the aforesaid decision, the Hon’ble Supreme Court observed as follows,
“9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid
decision, which reads as under:
“20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of
evidenceâ€, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)
4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) 312, Triveni Rubber & Plastics v. CEE 1994
Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State
of A.P. (2009) 10 SCC 636).â€
9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a
decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as
perverse and the findings would not be interfered with.
23.4 Similarly, it was held in para No. 6.2 of State of Gujarat Vs. Bhalchandra Laxmishankar Dave, [Criminal Appeal No. 99 of 2021, arising out of
SLP(Crl.) No. 9105 of 2015] as follows,
“6.2 An Appellate Court while dealing with an appeal against acquittal passed by the Learned trial Court, is required to bear in mind that in case of
acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle
of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Therefore,
while dealing with the cases of acquittal by the trial Court, the Appellate Court would have certain limitations. Even if the case of acquittal passed by
the Learned Trial Court, in the case of Umedbhai Jadavbhai vs. The State of Gujarat, (1978) 1 SCC 228, it is observed and held by this Court that
“Once the appeal is entertained against the order of acquittal, the High Court is entitled to re-appreciate the entire evidence independently and
come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at
after proper appreciation of the evidence. The High Court would be justified against an acquittal passed by the Learned Trial Court even on re-
appreciation of the entire evidence independently and come to its own conclusion that acquittal is perverse and manifestly erroneousâ€. However, so
far as the appeal against the order of conviction is concerned, there are no such restrictions and the Court of appeal has wide powers of appreciation
of evidence and the High Court has to re-appreciate the entire evidence on record being a First Appellate Court. Keeping in mind that once the
Learned Trial Court has convicted there shall not be presumption of innocence as would be there in the case of acquittal.
23.5 Learned counsel for the respondent Nos.1-7 has also relied on the decision of the Hon’ble Supreme Court in Gorle S. Naidu Vs. State of
A.P., [(2003) 12 SCC 449] and decisions of this Court in Arun Turni and Ors. Vs. State of Assam, [2002 (2) GLT 198] and Anwar Hussain Barlaskar
and Anr. Vs. State of Assam and Anr. [Crl.A. No. 398/2019, decided on 27.10.2021].
23.6 It has been further submitted that there is no clear evidence as to who had assaulted whom as the same is neither mentioned in the F.I.R. nor by
PW1, PW4, PW5 or PW7 though claimed to be eye-witnesses.
It has been also submitted that during cross-examination, PW6 had stated that she cannot say for sure as to which accused persons had assaulted
which of the injured persons and with what weapons.
24. We have heard the learned counsel for the parties and perused the original records.
25. On perusal of the evidence of the prosecution witnesses as well as the evidence of the defence witnesses (DW1 and DW2), the factum comes
out very clearly that there was a scuffle between the accused party and the victim party in the morning at around 07:30 A.M. of 24.03.2012. The
prosecution witnesses have categorically stated that while the deceased objected to the construction activities carried on by the accused on the piece
of land which the deceased claimed to belong to him, the accused assaulted the deceased.
26. DW1 and DW2, defence witnesses, in their evidence also stated that there was an altercation and scuffle between these two persons though the
defence witnesses claimed that the deceased had prevented the accused and his party from working in their land which belonged to them and it was
the deceased and his party who started the fight.
27. Thus, irrespective of the actual cause of altercation and ensuing clash, the factum of clash having taken place at the place of occurrence in the
morning at around 7/7:30 A.M. on 24.03.2012 stands clearly established.
28. It is not the case of the accused that no such clash had taken place at the place of occurrence on the fateful day. While the appellant’s case is
that it was the respondents who had assaulted them when they objected to certain construction work in the disputed piece of land, it is the case of the
respondents that the appellant and the deceased and their party assaulted the respondents while they were making construction on the land which they
(the respondents) claim to be theirs.
29. The presence of present respondents has not been disputed even by the defence witnesses.
30. On the other hand, even though the defence witnesses had claimed that they did not know how the deceased died, there is specific, clear and
cogent evidence from the side of the prosecution witnesses that it was Sibir Ahmed (respondent No.1) who dealt a blow on the head of the deceased
with a dao.
PW1, Md. Abdul Goni states in categorical terms that Sibir had struck his father (deceased Jamiruddin) on his head with a dao.
PW4, Musstt. Muslima Begum, who was present at the place of occurrence and who received minor injuries also stated that Sibir had hit his father-in-
law (deceased Jamiruddin) with dao.
PW5, Ismail Ali, an eye witness saw the accused persons digging earth on the disputed land and when the deceased Jamiruddin resisted them, Sibir
dealt a blow on the head of Juamiruddin with a dao.
PW6, Musstt. Ayarun Nessa another eye witness, a relative of the deceased stated that the accused assaulted the deceased, though she does not
specifically name Sibir as the one who assaulted the deceased. But Sibir was one of the accused persons present.
PW7, Md. Babul Hussain, brother-in-law of PW1, who was an eye witness stated that he saw Sibir and Misbah Uddin assaulting Jamir with dao and
crowbar respectively.
Their evidences could not be shaken during the cross-examination. The defence sought to establish during cross-examination that the accused fled
from the place of occurrence when some of the witnesses, PW4, 5 and 7 came to the place of occurrence. However, it is to be noted that the place of
occurrence was an open field on which the accused carried out certain construction work. The place of occurrence was not within an enclosed
quarter. Therefore, the witness need not be at the spot at the place of occurrence to witness the incident. The incident can be witnessed from a
distance also and not necessarily only when one is present at the place of occurrence.
31. Though the prosecution witnesses had claimed that the accused Sibir Ahmed struck the deceased on his head with a dao, it has been contended by
the respondents that the said injury is not corroborated by the post-mortem report, according to which, the injury received was caused by a blunt object
and accordingly, it has been submitted that there is inconsistency between the ocular and medical evidences.
As regards this, we are of the view that there is no material inconsistency or contradiction. Though the medical report says that fatal injury was
caused by blunt object, it is also a fact that a dao is not a weapon which is sharp on both the edges. It is in common knowledge that dao is a local
weapon used by the villagers for various domestic purposes including agricultural purposes and one side of which is blunt and another side is generally
sharp.
32. From the evidence on record, it has come out very clearly that the scuffle and clash between the two rival parties broke out after an altercation
ensured regarding construction of a house by the respondents on a piece of land, title of which was disputed. The clash, however, appears to have
happened on a spur of the moment after both the sides lost their tempers. Since Sibir (respondent No.1) was identified to have struck the deceased it
can be by the blunt side of the dao also in which event it would be in conformity with the medical report. It is not necessary that only the sharp edge of
the dao has to be used as there is evidence that after the clash erupted suddenly without any premeditation on either of the sides, Sibir had struck the
deceased with a dao. Therefore, it cannot be said that there is material contradiction or inconsistency with the ocular and medical evidence, if the blunt
side of the dao is used. If no sharp cut injury was caused, it is evident that the blunt side of the dao was used.
33. It may be also noted that the prosecution case was that Sibir Ahmed struck on the head of the deceased with a dao. Thus, we are of the opinion
that there is no material contradiction between the ocular and medical evidence.
34. Learned counsel for the respondents has tried to explain that the death of the deceased could not be connected directly with the injury caused. It
has been submitted that though the incident happened on 24.03.2012, it is on record that the deceased was discharged from the HAMM Hospital and
he was brought home though he was admitted again in Doboka Hospital on 09.04.2012 and he expired at the hospital on 10.04.2012, after a gap of
about 17 days.
Thus, there is a long gap between the date of the incident and the death.
35. It has been also contended by learned counsel for the respondent Nos.1-7 that the police did not seize the relevant documents from the hospital
where he was initially treated at HAMM Hospital and also from the Doboka Hospital where he was subsequently treated and where he expired.
36. Further, it has been also submitted by the learned counsel for the respondent Nos.1-7 that the doctor who conducted the post-mortem on the dead
body stated clearly in the cross-examination that the injury could have been also caused by falling over a hard object from a reasonable height and as
such, it is quite possible that the deceased died after falling from a height which caused the fatal injury on his head. As such, it cannot be said with
certainty that the injury was caused by hitting by a dao by Sibir as alleged by the prosecution.
37. As regards this contention, it may be noted that what the doctor (PW3) had stated in the cross-examination was that the injury may be caused on
falling over hard object from a reasonable height.
38. Thus, as per the medial opinion, the injury could have been caused if the deceased had fallen from a reasonable height and not merely by falling.
39. In other words, as per the medical evidence, if the deceased had fallen from a reasonable height viz., staircase or a place of a height, such an
injury could have been caused. But such scenario appears to be most unlikely for the reason that the person who had been grievously hurt and was
hospitalized would be generally looked after by some attendants, and it is unlikely such a person would fall from a reasonable height on his own. It is
not the medical opinion that such injury caused, could be caused by merely falling down while standing and hitting a hard object.
40. Therefore, in our opinion, the aforesaid alternative cause of causing of injury on falling from a reasonable height does not appear to be plausible. In
our view, the alternative scenario sought to be projected by the defence to claim benefit of doubt must be a possibility and not mere a guess work or
fanciful. It must be a real possibility. Therefore, there must be some material to show the real possibility of the deceased having fallen from a
reasonable height, which however, has not been indicated either during the cross-examination or in his defence evidence.
Further, the mere fact that the deceased had been discharged and brought home and again taken to the hospital cannot be any reason to delink the
injury received by the deceased with the assault by Sibir on his head on the day of occurrence as mentioned above.
41. Thus, we are of the opinion that there are credible material evidences on record that the deceased received head injury on being hit by a dao by
Sibir though it may be stated that said Sibir might not have a premeditated mind or pre-planned intention to cause death of the deceased. It appears
from the evidence on record that a clash suddenly broke out between the deceased and the accused and his party after an altercation erupted on the
use of the disputed piece of land.
42. In view of above, this Court would agree with the finding recorded by the learned Trial Court that the charge by criminal trespass of the accused
persons does not appear to have been established. However, we are unable to agree with the finding of the learned Trial Court that since it was not
the case of premeditated crime, the accused cannot be said to have caused the death of the deceased.
43. As regards this finding, even if, it is held that there was no prior motive or premeditated act on the part of the accused to cause the death of the
deceased to come within the scope of Section 302 IPC, certainly, there are evidences to show the assault of Jamiruddin, the deceased by Sibir with a
weapon which caused his death and as such, such an act on the part of the respondent Sibir comes within the scope of Section 304 IPC, that is,
committing culpable homicide not amounting to murder.
44. The Trial Court has held that there is some vagueness as to who had caused the injury to the victims and in what manner.
45. In a group clash, it may be difficult to pin point the particular person who had caused the fatal injury. However, in the present case, most of the
eye-witnesses had been consistent in their testimony that it was the accused Sibir (respondent No.1) who had dealt a blow on the head of the
deceased with dao, and as such, we are of the view that the aforesaid observation and conclusion arrived at by the Trial Court is contrary to the
evidence on record. To that extent, it can be said that such a finding is contrary to evidences and hence perverse, warranting interference by this
Court.
46. As regards other accused who were present, it was alleged that they had also assaulted the deceased with crow bars and they also assaulted
some of the witnesses who had gone to the place of occurrence on hearing the hue and cry. The evidence of PW2, the doctor who had examined
PW1 (Abdul Goni) and PW4 (Muslima Begum), however, opined that the injuries received by PW1 and PW4 were simple which might have been
caused by blows or by falling over. Since admittedly a clash broke out between these two groups it can certainly led to scuffle resulting in causing of
such simple injuries as received by PW1 and PW4. Receiving of such simple injuries certainly proves the presence of an assaulting party which has
been proved by the testimony of the PWs 1, 4, 5, 6 and 7.
47. After going through the records we are satisfied that the prosecution has been able to prove beyond reasonable doubt the following facts.
(i) That there was a scuffle and then a clash ensued between the deceased and the accused on 24.03.2012 at around 7 A.M. The clash occurred due
to a dispute because of construction of a house on the disputed piece of land which was claimed by both the parties.
(ii) The presence at the place of occurrence of the accused Sibir, respondent No.1 who testified himself as DW1, has been admitted by himself. In his
deposition he stated that while he was working on his land at around 6:37 A.M. on the day of incident, the deceased came and prevented him from
doing his work on the ground that the land belonged to his father and thereafter, an altercation ensued. Thereafter, the appellant and the accused
persons arrived there and the accused started assaulting the deceased.
(iii) Thus, the presence of the appellant and accused Sibir, respondent No.1 has not been disputed. That there was a clash between the two groups is
also on record. The uncertainty is who provoked the clash. What is however, proved beyond reasonable doubt is that there was a clash between the
deceased and the accused persons.
(iv) There are credible evidence through the mouth of PW1, PW4, PW5, PW6 and PW7 about the assault of the deceased by the accused Sibir with a
dao. Md. Jamir Uddin who received injury was taken from the place of occurrence to the hospital and he died after about 17 days receiving injury.
48. Thus, from the above, it can be clearly established that the accused Md. Sibir Ahmed had assaulted the deceased on the fateful day after a clash
over a construction on the disputed piece of land and the deceased suffered injury on his head which is also corroborated by the medical evidence,
from which injury the deceased ultimately died after a few days. However, as to whether there is evidence to show that the accused Sibir had
intentionally caused death of the deceased, to bring it within the scope of Section 302 of IPC, we are of the view that there is no such evidence.
However, there are evidences to show that he had struck the deceased on his head which later resulted in his death.
49. In the present case, it cannot be said with certainty that the respondent No.1, Md. Sibir Ahmed had the intention to cause death of the deceased so
as to bring home the charge under Section 302 of IPC. There are, however, sufficient materials on record that the incident happened after a dispute
arose over the construction on a disputed land. There was an altercation between the parties. There is also the counter claim of the accused Sibir of
being assaulted by the deceased and his party.
Thus, it cannot be said to be a premeditated murder but a death which occurred after a clash which suddenly broke out between the parties because
of a dispute over a piece of land.
50. Under the circumstances, we are inclined to hold that respondent No.1, Md. Sibir Ahmed had caused the death of the deceased by inflicting blows
on the head of the deceased with a dao, and it was within the knowledge that it was likely to cause death when he struck the deceased on the head
with a dao but there was no intention to cause death of the deceased as the incident happened during a fight which suddenly arose due to dispute over
a piece of land.
Accordingly, we hold that the respondent No.1 Sibir Ahmed has committed culpable homicide not amounting to murder, which is punishable under
Section 304 IPC Part II and not under 302 IPC .
51. As regards the other accused, though their presence has been indicated by the eye witnesses, nevertheless, their role in causing the death of the
deceased has not come out very clearly. As discussed above, the clash took place because of a dispute over a piece of land in which both the parties
were involved and accordingly, we are inclined to give benefit of doubt to the remaining accused persons.
52. We are mindful of the fact that this is an appeal filed against the acquittal of the accused persons and as such, principles as laid down by the
Hon’ble Supreme Court are to be kept in mind.
53. Though in law there is no difference in the power of the Appellate Court either in reversing an acquittal or conviction, there is a certain difference
in approach that may be adopted by the Appellate Court. By a judgment of acquittal by the Trial Court, the presumption of innocence in favour of the
accused stands fortified and as such, if the view adopted by the Trial Court is reasonable one and the conclusion so reached by it is based on material
evidence on record, ordinarily, the acquittal by the Trial Court ought not to be interfered by the Appellate Court.
On the other hand, if the Appellate Court finds that the Trial Court’s decision is based on erroneous views and against the settled position of law
or if there is a miscarriage of justice, or is perverse, the acquittal by the Trial Court can be overturned by the Appellate Court.
In this regard, one may refer to the decision in State of M.P. Vs. Bacchudas alias Balram and Ors. (2007) 9 SCC 135 wherein it was held in para
Nos. 9 and 10 as follows:
“9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal
shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs
through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of
the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from
the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence
where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.
(See Bhagwan Singh v. State of M.P[(2003) 3 SCC 21: 2003 SCC (Cri) 712]). The principle to be followed by the appellate court considering the
appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment
is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for
interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra[(1973) 2 SCC 793 : 1973 SCC (Cri)
1033] , Ramesh Babulal Doshi v. State of Gujarat[(1996) 9 SCC 225 : 1996 SCC (Cri) 972] , Jaswant Singh v. State of Haryana [(2000) 4 SCC 484 :
2000 SCC (Cri) 991] , Raj Kishore Jha v. State of Bihar[(2003) 11 SCC 519 : 2004 SCC (Cri) 212], State of Punjab v. Karnail Singh [(2003) 11 SCC
271 : 2004 SCC (Cri) 135] , State of Punjab v. Phola Singh[(2003) 11 SCC 58 : 2004 SCC (Cri) 276], Suchand Pal v. Phani Pal[(2003) 11 SCC 527 :
2004 SCC (Cri) 220] and Sachchey Lal Tiwari v. State of U.P.[ (2004) 11 SCC 410 : 2004 SCC (Cri) Supp 105]
10. When the conclusions of the High Court in the background of the evidence on record are tested on the touch- stone of the principles set out about,
the inevitable conclusion is that the High Court's judgment does not suffer from any infirmity to warrant interference.â€
54. In the present case, we are satisfied that while reversing the acquittal by the Trial Court in respect of respondent No.1, Sibir Ahmed, we have
noted that the Trial Court also gave a categorical finding that the accused persons had assaulted the deceased when he obstructed construction of the
house by the accused persons and the accused persons inflicted injury on him causing grievous injuries. The accused persons also assaulted the wife
and mother of the informant which has been corroborated by the prosecution witnesses and the Trial Court found their evidence trustworthy and
reliable in absence of material contradiction.
The findings recorded by the Trial Court is to be found at para No.10 of the impugned judgment which is reproduced in paragraph 14 of the judgment.
55. However, the Trial Court acquitted the accused on the ground that there is some element of vagueness as to who had actually caused the injury to
the victims and in what manner. As discussed above, there are credible materials on record which would clearly implicate the respondent No.1 for the
death of the deceased and as such, we are of the view that the finding arrived at by the Trial Court is perverse which is against the weight of
evidence and the finding of the Trial Court defies logic in the light of clear and trustworthy evidence of the eye-witnesses as discussed above.
Accordingly, we hold that the finding arrived by the Trial Court is perverse to the extent it acquitted the respondent No.1, Md. Sibir Ahmed and is
contrary to the clear evidence which is on record and deserves reversal as regards the culpability of the respondent No.1, Md. Sibir Ahmed.
56. We accordingly partly allow this appeal by convicting the respondent No.1, Md. Sibir Ahmed under Section 304 IPC part II for committing
culpable homicide not amounting to murder for the death of the deceased Jamiruddin. However, we do not interfere with the order of acquittal in
respect of the remaining respondents (respondent Nos.2-7) by giving the benefit of doubt.
57. As a result, respondent No.1 on being convicted under Section 304 IPC Part II, and taking into consideration the facts and circumstances as
revealed in the case, we sentence him to undergo rigorous imprisonment for a period of 4 (four) years with a fine of Rs.5,000/-(Rupees five thousand)
only and on failure of payment, to undergo further imprisonment of 6(six) months and any period of imprisonment suffered by respondent No.1, Md.
Sibir Ahmed in course of the investigation and trial would be set off against the aforesaid term of imprisonment.
58. The respondent No.1, Md. Sibir Ahmed shall surrender before the Court of Additional District and Sessions Judge, Hojai, who shall remand the
respondent No.1, Md. Sibir Ahmed to custody in the jail to undergo the aforesaid imprisonment.
59. Appeal is party allowed.
60. LCRs be remitted immediately to the concerned Court.
