1. This criminal appeal is directed against the Judgment and Order dated 15.11.2003 passed by Smti D B Devi, Learned Additional District Judge ( Adhoc), Darrang, Mangaldoi in Sessions Case No. 78 (DFMT) of 2002 ( G R Case No.448 of 2000).
2. By this impugned Judgment, the learned Trial Court has convicted all the 16 (sixteen) appellants under section 323 and 324 read with section 34 of the IPC. At the same time, the appellant Nos. 1 and 2, Mohar Ali and Aman Ali have also been convicted under section 379 and 354 IPC in addition to the offence under section 323 and 324/34 IPC. Except appellant Nos. 1 and 2, all the remaining appellants have been sentenced to undergo Rigorous imprisonment for 1(one) year with fine of Rs. 500/ and default sentences 6(six) months rigorous imprisonment for offence under section 323/324/34 of the IPC. However, the appellant Mohar Ali and Aman Ali have been sentenced to undergo 1 = year for offence under section 324 IPC. As usual, the aforesaid appellants have also been sentenced to rigorous imprisonment for 1(one) year and a fine of Rs. 500/with default rigorous imprisonment for 6 (six) months for the offence under section 323/34 of the IPC. At the same time, Appellant Mohar Ali and Aman Ali have been sentenced for 6 (six) months rigorous imprisonment for offences under section 379/354 IPC respectively. Being aggrieved with the conviction and sentences, all the appellants have filed this composite appeal. Heard Ms. K. Deka and Mr. W. Imran, learned counsels on behalf of the appellants under authority of Mr. A B Choudhury, learned senior counsel also heard Mr. B S Sinha, learned Addl. P.P. for the State.
5. The prosecution case in brief is that the appellant Mohar Ali had an agreement with the victim Jainal Abedin about 1 (one) Bigha land at a consideration of Rs. 11,400/ and advance payment of Rs. 6000/ was made to the land owner. It is the further case of the prosecution that without paying the remaining consideration amount, the appellant Mohar Ali was insisting for executing the sale deed in his favour. The remaining appellant are brothers, cousins and closely related to the said Mohar Ali. It is also the case of the prosecution that on 14.10.2000 at about 6.30 in the morning, the appellants came to the house of Jainal Abedin and demanded execution of the sale deed and on his refusal, without payment of the balance amount, said Jainal Abedin was assaulted with spear, lathi and wooden piece. Hearing the shouting of Jainal Abedin, his mother and brothers also came to the scene and they were also assaulted at random. Thereafter, the injured were hospitalized and FIR was lodged under sect
6. After going through the impugned judgment and evidence on record, it is clear that there was no dispute from the side of the accused persons about the incident and ''mar pit''. However, the defence case was that the disputed land was in their possession and as such the informant and the prosecution witnesses had come to reoccupy the same and appellant/accused persons were assaulted. During the course of arguments, Ms. Deka submitted that the prosecution failed to prove the exact place of occurrence and on this ground alone, the appellants may be acquitted on benefit of doubt. Learned Counsel for the appellants also contended that the conviction under section 379 and 354 IPC against Mohar Ali and Aman Ali respectively has been recorded without any evidence. With regard to the sentence, learned counsel submitted that in view of mutual fight arising out of rival claim of possession of a piece of land, the sentence is on the higher side.
8. With regard to the place of occurrence, the record reveals that the house of Jainal Abedin and his brother was contiguous to the vegetable field. On the other hand, some of the appellants also lived nearby and some of the appellants were from adjacent village.
9. Relying upon the testimony of PW8, learned counsel for the appellant submitted that since a bicycle was recovered from the field, it has to be inferred that the incident took place in the filed and not in the house of Jainal Abedin. After going through the testimony of witnesses, it is clear that the field was situated adjacent to the house of Jainal Abedin and the bicycle was also recovered after 15 to 20 days. Hence, recovery of bicycle from the field cannot be considered as a conclusive proof that the ''mar pit'' had taken place altogether at a different place or far away from the house of the injured persons. Hence, the theory of contradiction about the place of occurrence is misplaced and rejected.The record reveals that out of ten witnesses, as many as seven witnesses are victims of the assault. The other witnesses are medical officer and the I.O. It is the settled position of law that injured are less likely to implicate innocent persons allowing main culprits to go scotfree. At the same time when a large number of people are involved in the ''mar pit'', it is also difficult to pinpoint as to which accused assaulted whom and give precise evidence of the use of specific weapon used by the assailants. However, in the present case, all the injured persons have implicated all the appellants, except Kasem Ali in the assault.
11. It is true that a plea was taken in the Trial Court that some of the accused persons were from different villages and, as such, it would not have been possible for them to attack the informant and other persons early in the morning. However, the testimony of independent witnesses corroborates the prosecution story and the record do not support this plea. Be that as it may, no defence evidence was tendered to prove that the appellants were living in different villages and at sufficient distance from the place of occurrence.
12. The victims'' testimony about the assault has also been corroborated by medical evidence. Two doctors were examined by the prosecution to prove the injury. PW1, Dr. Manjula Medhi has proved the injury upon as many as four persons, whereas PW2, Dr. DN Saikia has proved the injuries upon Jainal Abedin. According to PW2, Jainal Abedin had sustained penetrating injury over left side of the chest, ephysema of left lung and fracture of left arm. According to PW3, the injury of Jainal Abedin has been described to be grievous one. Be that as it may, the said Jainal Abedin had taken nearly one month treatment in government hospital. Hence, conviction of the appellants under section 323/324 read with section 34 of the IPC cannot be faulted, except to Kasem Ali. In other words, the conviction of all the appellants for the aforesaid offences is hereby upheld. Since, no victim has implicated Kasem Ali for the offence the, conviction of Kasem Ali is hereby set aside from all the offences.
13. With regard to the conviction of Mohar Ali under section 379 IPC, there is no conclusive evidence of stealing any property from the house of the victims nor is there any evidence of recovery of any stolen property. Hence, conviction of the said appellant under section 379 IPC is hereby set aside.
14. Similarly, the conviction of Aman Ali under section 354 IPC is also unsustainable on facts. It is true that Jainal''s mother Musstt. Zohara Begum was also assaulted with blunt weapon. In my considered opinion, just because a woman is assaulted with a weapon, it will not attract the offence under section 354 IPC. In other words, the prosection has to prove that force of any kind was used with intention to outrage the modesty of such woman. In the present case, PW4 was assaulted when she herself came running to the place of occurrence hearing ''hulla'' and as such, Amar Ali had no intention to outrage her modesty. Accordingly, conviction of Aman Ali under section 354 IPC is also hereby set aside.
15. With regard to the sentence, it appears from the impugned judgment that the learned Additional Sessions Judge has directed that all the sentences shall run separately, meaning thereby consecutively. Having regard to the fact that the incident took place due to refusal of the Jainal Abedin to execute the sale deed without full payment of value of the land, it would be just and proper to order that the sentences would run concurrently. However, it is made clear that the quantum of sentences does not require interference.
In the result, appeal stands dismissed. However, conviction of the remaining appellants Kasem Ali under section 323/324/34 IPC is hereby set aside. He is set at liberty. Similarly, conviction of Mohar Ali and Aman Ali under section 379/354 IPC respectively are also set aside. At the same time, it is directed that all the sentences shall run concurrently. The appellants are directed to sent the trial to seve out the remaining period of sentences.
17. The Registry is directed to return the LCR with a copy of this judgment to the Trial Court. On receipt of this Judgment, learned Additional Sessions Judge, Darran shall issue modified custody of warrant in terms of this judgment.
