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Criminal Appeal No. 373 of 1962/Revision No. 252 of 1964, decided on 6th July 1964.
, Ss. 302 & 304‑Injuries, simple and minor in nature, on persons of accused‑Cannot, in absence of positive evidence, lead to inference of free fight between parties.
, S. 439‑Sentence Enhancement ‑ Powers of High Court, except in case under subsection (3), not restricted‑-High Court has power to enhance sentence beyond limits of powers of trial Court.
Emperor v. Ram Nath and others A I R 1935 All. 989; Raja Ram v. Emperor A I R 1935 Oudh 239 and Sarjug Rai and others v. The State of Bihar 1958 S C A 435 ref.
Md. Ismail with S. Ishtiaq Ahmed, Nasim A. Rahman and M. Nurullah for Appellants.
Abdul Hakim, D. L. R. Daliluddin Ahmed and Naimuddin Ahmed for the State.
.‑There are 15 appellants before us in this appeal. Appellant No. 1 (Imam Ali alias Eman Sardar) was charged under section 148 of the Pakistan Penal Code and sentenced thereunder to suffer rigorous imprisonment for one year. He was also charged under section 304, Part' I, of the said Code for having killed one Gazibur alias Ghazi Molla and sentenced thereunder to rigorous imprisonment for seven years. He was further charged under section 324 of the Penal Code for having caused hurt to P. W. 5 (Khajiran Bibi) and sentenced to R. I. for two years. All these sentences were ordered to run concurrently. Appellants Nos. 2 to 6 were found guilty under section 148 of the Code and sentenced thereunder to rigorous imprisonment for one year each. They were further found guilty under section 304, Part I, read with section 34 of the Code for having killed one Akbar Ali and sentenced to rigorous imprisonment for seven years each. The two sentences were ordered to run concurrently. Appellant No. 7 (Bajuddin Sarkar alias Bahajuddin Sarkar) was convicted under section 147 of the Penal Code and sentenced thereunder to pay a fine of Rs. 200, in default, rigorous imprisonment for six months. He was further found guilty under section 304(1)/109, on two counts, for having abetted the killing of Gazibur and Akbar Ali, and was sentenced thereunder to rigorous imprisonment for five years under each count for each of the two offences he had been charged with. The sentence of six months' R. I. in default of payment of fine under section 147 of the Penal Code was ordered to run consecutively. Appellants Nos. 8‑14 were found guilty under sections 148 and 324 of the Code and under the first count they were sentenced to rigorous imprisonment for one year each and under the second to R. I. for two years each. The sentences were ordered to run concurrently. Appellant No. 15 (Suhrab Ali Sardar alias Sorab Sardar) was found guilty under sections 147 and 323 of the said Code and under the first count he was sentenced to pay a fine of As. 200, in default; rigorous imprisonment for six months, and under the second to pay a fine of Rs. 100, in default, to suffer R. I. for three months. . The sentences in default of payment of the fines under the two counts were ordered to run consecutively.
Prosecution case was that Md. Arab Ali Sarkar (P. W. 3) is the son of P. W. 9 Asalat Molla's wife's elder brother. They belong to village Bousa within police station Chouhali in the district of Pabna. The house of Asalat Molla lies at a distance of about 8/9 bighas from that of Arab Ali towards the east. Asalat and Lowai Mondal purchased under a conveyance, dated the 8th of Falgun, 1367 B. S, .95 acre of land lying to the west and south of the house of Asalat from one Marium Nessa, widow of Pahalwan, who was a co‑sharer tenant of the holding recorded in Khatian No. 176 of Mouza Bousha. Arab Ali advised Asalat Molla to purchase this land and he himself negotiated and completed the transaction between Marium and Asalat. Appellants Nos. 7 and 5 (Bajuddin Sarkar alias Bahajuddin Sarkar and Hamid Ali Sardar) were in possession of the land that Asalat purchased from Marium as burgadars. Since appellants Bahajuddin and Hamid Ali were not paying any share of the crop to the owner Marium. Marium thought it advisable to dispose of this property. Appellants Bahajuddin and Hamid Ali offered a very nominal price to Marium for purchase of this land which Marium did not accept. She instead sold the land to Asalat Molla and Lowai Mondal who offered the highest price to her. The sale -deed had not been taken delivery of by Asalat and Lowai Mondal from the. registration office up to the 7th of Jaistha, 1368 B. S. and, therefore, they did not make any effort up to that time to get possession of the land from appellants Bahajuddin and Hamid Ali.
In the afternoon of Saturday, Jaistha 6, 1368 B. S. appellant Bahajuddin surrounded the house of Asalat Molla along with his men numbering about 125, armed with various weapons, and challenged him to come out of his house and get the taste of purchase of the plot of land which Bahajuddin was possessing as a burgadar of Marium. At that time two members of the local Union Council, Kabiruddin Molla (P. W. 12) and Abdul Qasim (P. W. 17), came upon the scene while going to the Union Council office and having realised that Bahajuddin and his men were determined to create trouble, some bow persuaded them to go back and promised that they would hold a salish on Monday, the 8th of Jaistlra, 1368 B. S. with regard to the purchase of the land by Asalat., Being so persuaded, Bahajuddin "and his men very reluctantly left the house of Asalat Molla, On the next day, i.e., Sunday, Jaistha 7, 1368 B. S., at the fag end of Zohar prayer time and a little before Asor prayer time, Bahajuddin along with 100/150 persons variously armed with lathis, falas, holongas, daos, etc. suddenly attacked the house of Arab Ali (P. W. 3) who had negotiated the sale of the land by Marium to Asalat Molla. Being so suddenly attacked, Arab Ali stood in folded hands and begged of them in the name of Allah to desist from attacking him and his house to which appellant Bahajuddin replied "Shyala, you gave counsel and let my land be purchased by Asajat. Molla" and so saying ordered his companions to assault Arab Ali. Arab Ali's sister, Parisan Bibi (P. W. 2), then came in between Arab Ali and the attackers and asked her brother to get inside the but as the attitude of the attackers was very menacing. Arab Ali immediately rushed back into his but by the southern door; but Bahajuddin and his men did not desist from attacking the house of Arab Ali and Parisan was struck with a holonga by appellant No. 10 (Akbar Ali Sardar) just below her throat and appellant No. 8 (Mobarak Ali Sardar) struck her with a fala on the leg. Arab Ali in the meantime rushed out of the hut from the northern door and ran towards the house of Asalat. Babar Ali, brother of Arab Ali, who lives in the same house, came forward to request these miscreants not to create any trouble but he was struck with a holonga on the back by appellant No. 9 (Salat Sardar) and with a brick‑bat on the left eye by appellant No. 15 (Suhrab Ali Sardar). Thereafter appellant Bahajuddin and his men proceeded towards the house of Asalat Molla and on the way injured Hossain Ali who lives in the house adjacent to that of Arab Ali on the north. Hossain Ali was struck with holonga by appellant No. 11 (Haran Sardar) and appellant No. 12 (Moin Sardar) Appellant No. 1 (Imam Ali alias Eman Sardar) struck Khajiran Bibi, wife of Hossain Ali, with a fala on her left breast. Having thus injured these persons in the houses of Arab Ali and Hossain Ali, the invaders proceeded to the house of Asalat Molla. In the meantime Arab Ali having gone to the house of Asalat cried for help and said that everybody in his house was being killed by Bahajuddin and his men. Akbar, Gazibur, Sekendar and Shahjahan were at that moment sitting in the shop house of Asalat lying just to the south of his yard and Asalat was inside his dwelling hut. These persons hearing the cries of Arab Ali, came out of their respective huts and stood besides Arab Ali. Also came there hearing the cries of Osman Ghani, Khabir Molla and Lowai Mondal from their respective houses. Nefaz, who lives just to the east of Asalat's but, also came out on his outer yard and stood to the west of his hut. Arab Ali then told them about the attack launched by Bahajuddin and his men on his house. No sooner Arab Ali had told these witnesses about the attack than Bahajuddin and his party men came upon the house of Asalat and stood restive in front of the outer yard of Asalat's house. Asalat and his witnesses then implored Bahajuddin and his men in the name of Allah to desist from making any attack on Asalat's house and wanted to know the reasons for such assault whereupon Bahajuddin is said to have ordered his men to attack Asalat and his companions. As Soon as this order was given by Bahajuddin, appellant No. 1 Imam Ali darted forward and pierced Gazibur with a fala on his ribs. Appellant No. 14 (Nur Bux Sardar) gave two strokes of holonga on the left leg of Sekander and appellant No. 13 (Chandu Molla) injured Shahjahan with holonga on the right shoulder and on the left side of neck. Being thus, pierced, Gazibur pressed his wound‑and ran stumbling towards the hut of Nefaz also ran back to his hut. Shabjahan also ran away to his house. Arab Ali, Asalat, Lowai Mondal, Sikandar, Khabiruddin, Osman Ghani and Akbar started running towards the hut of Asalat to take shelter therein. Akbar fell behind and while he was just getting on to the verandah of Asalat's hut, he was pierced from behind with a fala by appellant No. 6 (Sagar Ali Sardar) Akbar having received the stoke, instantly fell down with the upper part of his body on the verandah and his legs below. He was trying to get on to the verandah when appellants Taleb Ali Sardar, Maqsud Ali Sardar, Seken Sardar and Hamid Ali Sardar pierced him with holongas. The other witnesses including Asalat had by then taken shelter inside the hut and closed its door. The attackers then gave a few strokes with holongas and falas on the matwalls of Asalat's hut. Gazibur while entering the hut of Nefaz for taking shelter after being struck on the chest by appellant No. 1 Imam Ali fell dead inside the hut. Arab Ali, who had run into the hut of Asalat for safety, did not stay there but went out of the northern door and ran for his life towards the east. After killing these two persons, Gazibur and Akbar Ali, the miscreants having struck the matwalls of Asalat's but went away. Thereafter Asalat and others came out of the but and found Akbar lying dead on the verandah and Gazibur lying dead inside the but of Nefaz.
Arab Ali fled to the house of P. W. Nasimuddin in village Gaina Kandi and narrated to him the occurrence that had taken place in his house and was still proceeding in the house of Asalat wherefrom he had just come. Nasimuddin sent one Maiser to Asalat's house to find out what had happened there and this Maiser, having come to the house of Asalat, found Akbar Ali and Gazibur lying dead and went back with the said information to Nasimuddin. After learning, about the death of Akbar and Gazibur, Arab Ali went to the neighbouring village Panchuria at about dusk and informed P. Ws. Maqbul Hussain and Abdul Quasem about the occurrence and deaths of Gazibur and Akbar. Abdul Quasim, who is a member of the local Union Council, sent for the Defadar Kalu Molla and deputed him to go to the house of Asalat Molla accompanied by Arab Ali. Arab Ali came back to the house of Asalat along with the Dafadar Kalu Molla at about 10 p. m. and found the dead bodies of Akbar Ali and Gazibur in the husking shed of Asalat. Thereafter leaving the Dafadar to guard the dead bodies, Arab Ali started for thana via Maqbul's house where he reached in the late part of the night. He then procured a boat and taking Maqbul with him started for the police station in the early morning of Monday, the 8th of Jaistha, 1368 B.S. and reached the thana covering a distance of about 15/16 miles at about 10 p.m. on the same day. The time taken to cover the distance of 15/16 miles by boat through the river Jumna was due to the fact that they had to go upstream and also that they were caught by storm on the way. The first information report was lodged in the thana at 11 p. m. on Monday, the 22nd of May 1961, After the first information was recorded by the police, P. W. 26 (Md. Akram Ali), an A. S. I. of Police, was deputed to go to the locality and take preliminary steps. Having started 11‑50 p.m. by boat, the A. S. I., P. W. 26 along with Arab Ali and Maqbul reached Asalat's house as 8 a.m. on the following morning (Tuesday; the 23rd of May, 1961). The police officer then held inquest on the dead bodies of Gazibur and Akbar Ali and sent them to Serajganj for post‑mortem examination escorted by Constable No. 268 (Abdul Subhan) and Constable No. 699 (Maniruddin). Thereafter P. W. 26 started seizing alamats from the house of Asalat. He also searched the houses of the accused persons and seized certain alamats but could not find any of the accused persons in their respective houses. P. W. 28 (M Majibul Huq) the officer in charge of Chouhali Police Station, took up investigation of the case and took charge of the seizure list, the alamats and the sketch map prepared by the Assistant Sub‑Inspector of Police, Md. Akram Ali (P. W. 26). On completion of the investigation, charge‑sheet was filed by the investigating officer on 17‑7‑61. After the preliminary inquiry held by a Magistrate of the 1st Class, the appellants along with 21 others were placed on trial before the Sessions Judge of Pabna on various charges including those under sections 302, 324, 323, 148, 147 of the Pakistan Penal Code.
The learned Sessions Judge by his order No. 1, dated 23‑2‑62 altered the charges and, after, framing charges under sections 304, 304/109 and 148 of the Penal Code, transferred the case to the Court of an Assistant Sessions Judge on the plea that as many as nine death‑sentence cases were pending for disposal before him and so it was not practicable for him to take up this case for trial at least for two months while the two other Assistant Sessions Judges were practically sitting idle for want of work. After transfer of the case to the learned Assistant Sessions Judge, he modified the charges to some extent and held the trial.
The defence case was that the accused persons were not guilty to the various charges framed against them. They challenged the occurrence as related by the prosecution and asserted that no occurrence took place in the houses of Arab Ali, Husain Ali Mondal and Asalat Molla. Their further case was that Asalat and L6wi, having obtained a conveyance in respect of the land of appellants Bahajuddin Sarkar and Hamid Ali Sardar from a fictitious person falsely personating to be Marium wife of Pahalwan, wanted to grab this property on false pretence. They further stated that on the date of occurrence, at the alleged time, appellant Hamid Ali alone with his son Fazar and one agricultural labourer, namely, accused Darag Ali was, weeding paddy saplings in his parcel of land purchased by Asalat and Lowai. Accused Nur Bux, Suhrab, Selat, Akbar, Hatem Ali and one Kalu were also weeding paddy saplings in the parcel of land of appellant Bahajuddin Sarkar which was purchased bit Asalat and Lowai.
In the meantime Asalat Molla and Lowai Mondal went to the aforesaid weeders and prohibited them from weeding the crop. These weeders did not obey. Thereafter on the call of Asalat, there came about 40/50 persons armed with lathis, holongas, and falas from his house and neighbourhood and started beating ‑appellant Hamid Ali and others. The victims screamed and thereupon 20/25 men of their party poured 'in with lathi, holonga, fala, etc. and there occurred a free fight between the two parties on the disputed land. Appellants, Suhrab Ali Sardar, Hamid Ali Sardar, Selat, Akbar Ali Sardar, Nur Bux and the aforesaid Darag Ali, Hatem Ali and Kalu were injured in that fight. Gazibur and Akbar Ali died there in the free fight. Their dead bodies were carried away from the disputed land to the house of Asalat Molla. Arab Ali, the informant, knew all about these facts, as staled by the defence, but he concocted a case as was alleged by the prosecution in consultation with his advisers; and that was the reason for lodging the first information more than 24 hours after the occurrence.
The prosecution examined as many as 28 witnesses in the case and the defence examined two in support of its case.
After going through the records on the first day of hearing (25‑5‑64) we felt that, in the facts and circumstances of the case, a heavier sentence under section 304, part I, of the Penal Code was called for. We, therefore, on the following day (25‑5‑64) issued a Rule Suo Motu on appellants Nos. 1‑7 as well as the Deputy Commissioner of Pabna to show cause why the sentences imposed on the said appellants under section 304, Part I, of the Penal Code by the learned Assistant Sessions Judge should not be enhanced.
After the service of the Rule we heard the case at length and this judgment will dispose of both the appeal and the Rule issued suo motu by this Court.
Mr. Ismail, the learned Advocate for the appellants, in the first place, argued that the prosecution failed to prove the occurrence in the houses of Arab Ali and Hossain Ali. He stuck to the defence case that the occurrence took place on the disputed land, which lies to the south‑west of the homestead of Asalat Molla, when, Asalat wanted the men of 'the accused party to desist from weeding the paddy saplings and, on their refusal, called his party men and attacked these labourers whereupon the accused party men also came being armed and there ensued a fight between the two parties in which a number of persons on both sides were injured and Akbar and Gazibur were unfortunately killed; but, to get away from the liability of creating the trouble, Asalat and his men wanted to shift the place of occurrence from the disputed land to the houses of Arab Ali, Hossain Ali and Asalat Molla. In support of this contention, Mr. Ismail laid very great stress on the following facts, namely, (1) that although Arab Ali had come back to the house of Asalat at 10 P. M. on the date of occurrence from the house of Mokbul Hossain, he did not care to go to his own house or to the house of Hossain Ali to find out as to whether any of his relations bad actually been injured by appellant Bahajuddin Sarkar and his men; (2) that no doctor was called in to treat Parisan Bibi (sister of Arab Ali), Khajiran. Bibi (wife of Hussain Ali) Hussain Ali (cousin of Arab Ali) and Babar Ali (brother of Arab Ali) who are said to have been injured when the first attack was launched in the houses of Arab Ali and Hossain Ali until after the arrival of the Assistant Sub Inspector of Police on Tuesday, the 8th of Jaistha, 1368 B.S; (3) that none of these persons, namely, Babar Ali, Parisan Bibi, Hossain Ali and Khajiran had stirred out of their respective houses for these two days even when two persons of their party, Akbar and Gazibur, had been killed by appellant Bahajuddin and his party men in the house of Asalat; and (4) that blood‑stained clothes of Parisan and Khajiran were not either seized by the Assistant Sub‑Inspector of Police or handed over to him by these witnesses when the said police officer came to the locality on Tuesday morning to take preliminary steps and was actually seizing alamats from the houses of Asalat and some of the accused persons.
Mr. Ismail next argued that the target of the accused party being Arab Ali, who negotiated the sale of the land, and Asalat and Lowai Mondal who purchased the disputed land, there could be no reason for the accused persons to have assaulted either Babar Ali (brother of Arab Ali) or his sister Parisan Bibi or his cousin Hussain Ali or Khajiran Bibi wife of Hussain Ali. In substance Mr. Ismail wanted to submit on this point that there could be no reason for an attack on Arab Ali's house by appellant Bahajuddin and his men and that there was, in fact, no attack made on that house because no sign of any depredation was found by either the investigating officer or the Assistant Sub‑Inspector of Police, who took the preliminary, steps, on the yard or in the premises of Arab Ali and Hossain Ali. Had there been an attack of about 100/150 persons on the house of Arab Ali, there could not but be some signs of depredation left there; and when the complainant's men showed the A. S. I. round the place of occurrence, there could be no reason for them to have missed the signs of depredation.
As against this contention of Mr. Ismail, we have the evidence of the eye‑witnesses, namely, P. Ws. Parisan Bibi, Md. Arab Ali, Babar Ali Khajiran Bibi and Hussain Ali Mondal on the point of attack made by the appellant Bahajuddin and his party men on. the houses of Arab Ali and Hussain Ali. We have read the entire evidence with Mr. ‑Ismail and we have considered the evidence of each one of the prosecution witnesses in the light of the submissions of Mr. Ismail made on each of them, but as far as we can see, we find nothing to disbelieve P. Ws. 2, 3, 4, 5 and 8 on the point of their having given a vivid description of the attack made by appellant Bahajuddin and his men on the houses of Arab Ali and Hussain Ali, and the injuries caused to the inmates of these two houses. The fact of there being no signs of depredation in the aforesaid two houses may be attributed to this that these invaders were after Arab Ali and, therefore, as soon as they found Arab Ali running away, they did not 'bother to do any further damage' to his house except removing the obstruction put by Parisan, Baber Ali, Hossain Ali and Khajiran in their way of attacking Arab Ali and causing some injuries to these four persons. The time was end of May and there is evidence to show that there were rain and storm after the occurrence which delayed Arab Ali's going to the thana and this may be a cause of removal of any blood mark or foot‑prints on the yards of Arab All and Hussain All. It is not the case of the prosecution that these invaders damaged the houses of Hussain and Arab Ali in any way and, therefore, the question of the A. S. I's seeing any depredation in the houses of Arab Ali and Hussain Ali does not, in our opinion, arise.
We do not think that the prosecution case in regard to the attack on the houses of Arab Ali and Hussain Ali is in any way weakened by the fact of P. Ws. Parisan, Babar Ali, Hussain Ali and Khajiran not moving out of their houses after the occurrence even for more than 36 hours. All these four persons were injured with fala, holongas. They were attacked by more than 125 armed bandits which terrified them almost to death and the nature of the attack on their houses, one after another in broad daylight, must, in our opinion, have created extreme fear in the mind of these people and that possibly was the reason why they did not move out of their houses until the police had arrived on Tuesday morning. That no doctor was called in to give first aid to these injured persons, as argued by Mr. Ismail, is a point not acceptable to a reasonable mind because we find that on' Tuesday morning a doctor did arrive and gave treatment to these injured persons. There is no evidence on record to show as to from what distance this doctor had to be called to treat these injured persons. Apart from that, the clouds of two deaths were hanging low on the heads of these victims with the two dead bodies lying in the husking shed of Asalat.
We also do not find anything from the evidence of these eye‑witnesses, who have spoken about the occurrence in the houses of Arab Ali and Hussain Ali, which in any way weakens the prosecution case on this point and we accept the evidence of these eye‑witnesses in regard to the attack made by appellant Bahajuddin and his men on the aforesaid two houses. There being, therefore, no substance in this contention of Mr. Ismail, we reject the same.
The next point argued by Mr. Ismail was that the occurrence took place on the disputed land and it could be gathered from the prosecution evidence itself. In support of this, he referred us to the evidence of P. W. 24 (Abdul Jalil Mia). This witness in his cross‑examination has said that Asalat told him that the occurrence took place on that parcel of land meaning thereby the disputed land): but when Asalat (P. W. 9), after being recalled at the prayer of the defence, was confronted with this statement of P. W. 24, he replied thus:
"I told Chairman and Dafader when and how there occurred the occurrence at my message (sic). I did not tell them and others showing the land I have purchased to the south‑west of my house that occurrence took place in that land."
If the occurrence took place on the disputed land where there were paddy saplings six inches tail there was no reason for the same not being damaged when more than 50 persons; according to the defence, were fighting between themselves with deadly weapons in which two persons at least were killed and' several others injured. There was no damage to the paddy plants on the date of occurrence and there was no sign of any depredation in or around that land. That the paddy saplings were not damaged is born out by the evidence of D. W. I (Susthir Molla) who has stated:
"I cannot say whether paddy saplings were damaged or broken due to the marpit. Asalat and others went and began to render marpit but no sapling was damaged by them."
Although this witness had stated earlier in his examination‑in -chief that while coming by the side of the land he saw the complainant party attacking the men of Bahajuddin's party and there was a marpit going on in the disputed land, his evidence on this point cannot be accepted for the simple reason that he had to 'admit in his cross‑examination that no paddy saplings were damaged even though so many persons had fought on that land. This is an absurd position and we do not think that it appeals to any reasonable mind: Therefore if the evidence of P. W. 9 (Asalat Molla) is taken together with that of D. W. 1 (Susthir Molla) on this point, it will be found that the contention raised by Mr. Ismail namely, that it can be‑ gathered from the prosecution evidence itself that the occurrence took place on the disputed land, is not substantiated and, as such, we reject this point of Mr. Ismail as well.
The next point argued by Mr. Ismail is that there is inherent improbability in the manner of occurrence as deposed to by the prosecution witnesses. He thereby wanted to submit that it was improbable that Bahajuddin and his men would attack house after house until they would go to the house of Asalat and. kill two persons Akbar and Gazibur, who are not directly connected with the dispute over the land when they were after the blood of Arab Ali, Asalat and Lowai Mondal‑--none of whom has been injured. He further contended that the story given by Arab Ali of his flight from his house to that of Asalat's and from thereto the neighbouring village seems to be improbable. He submitted that Arab. Ali could have easily been caught by appellant "Bahajuddin and his men, if at all they were chasing him, and done to death or at least injured and that Arab Ali could not have escaped from the hands of so many persons. We have on evidence that P. W. Parisan Bibi, the sister of Arab Ali, rushed forward as soon as the attackers came to the house of Arab Ali and asked her brother to hide himself inside the but as the mood of the attackers was very menacing; that‑Arab Ali scenting danger not only went inside the hut but also did not stay there even for one moment and rushed out by the back door and ran as fast as he could and had a lead of about 8/9 bighas from the chasers when he reached the house of Asalat ; that Arab Ali took the first opportunity of hiding himself inside the but of Asalat; and that when Asalat's house was attacked, Arab Ali again took to his heels by the back door and escaped from the hands of his enemies. The mode of attack, as described by the prosecution witnesses, by about 150 people of a house where 7/8 persons were trying to resist them by pleading with them as well as the manner of assaults on those innocent persons kept the attackers busy, which opportunity Arab Ali seems to have taken to escape by the back door. It is not unnatural, on such occasions for one to escape if one has the intelligence to scent the gravity of the danger awaiting him.' We find no improbability in the description of the occurrence as given by the prosecution witnesses. ‑ The attack on the house of Asalat has been spoken of by P. Ws. 3 9, 14, 15 and 16 and from the evidence of these witnesses we have been shown nothing by the learned Advocate for the appellants from which a doubt may arise‑in our mind as to the truth of the story given by these prosecution witnesses. We, therefore, do not find any substance in this contention of Mr. Ismail either.
Mr. Ismail then argued that as many as eight of the accused persons were injured whose injuries were examined by P. W. 10 (Abdul Quadir), a registered medical practitioner. He sub mitted that if the story of the prosecution is accepted that about 100/150 persons being variously armed attacked the houses of Arab Ali, Hussain Ali and Asalat and injured their party men who were not more than ten in number and unarmed, then there could be no reason for these eight accused persons to have been injured with falas and halongas. According to Mr. Ismail, the injuries on the persons of these accused would go to show that there was a free fight between the parties and in that fight both sides got injuries and, therefore, the prosecution story as related is not a truthful one; and once it is held that the prosecution has suppressed the true story and has come up with a story concocted or embellished then the 'prosecution story must be rejected and the appellants should, get at least the benefit of doubt in the present case.
To a question put to P. W. 10 (Abdul Qaudir) (possibly the prosecution), he answered in the following terms :‑
"The injuries I found on Hamid, Selat, Akbar, Hatem, Nurbox and Kali might be so caused but those I have found on the persons of Suhrab and Darog Ali are not to be caused by consent or friendly hand."
According to this witness, the injuries found on the persons of the accused, except those of Suhrab and Darog Ali, were simple and were of very minor nature. The injuries found on the persons of Suhrab and Darog Ali measured "x "x1/6" which, too, in the opinion of the doctor did not seem to be severe in nature.
In the absence of any positive evidence as to under what circumstances the injured appellants received the injuries which were found by the medical officer (P. W. 10) to be simple and minor in nature, we cannot come to the conclusion that there was a free fight between the two parties on the disputed land where men on both sides got injuries. The improbability of the defence story of the free fight having occurred on the date of occurrence is found from the fact that if, as the defence says, Asalat and his men were the aggressors with holongas, falas, lathis and other deadly weapons and attacked 4/5 un‑armed persons who were weeding paddy saplings at the moment, there could not be only these minor injuries on some of the accused persons but grievous injuries might have been caused‑to most of them. In that view of the matter, we do not think that any importance can be attached to these minor injuries on some of the appellants which, according to the doctor, also might, have been caused by friendly hands excepting appellant Suhrab and accused Darog Ali who has since been acquitted.
The deed of conveyance by which Asalat Molla and Lowai Mondal purchased the land in dispute was executed on the 7th of Falgun, 1367 B. S. The document had not been taken delivery of from the registration office and there is no evidence to show that, immediately after the purchase, Asalat made any attempts to go into possession of the disputed land. There is only one piece of evidence on record which shows that appellant Bahajuddin Sarkar was told sometime before the occurrence that Asalat had purchased the disputed land and Bahajuddin would have to give up possession thereof to which Bahajuddin replied that when the document would be shown to him, he would give up possession; but the subsequent conduct of Bahajuddin does not support this simple answer said to have been given by him when told about the sale of the land. On the 6th of Jaistha, 1368 B. S. appellant Bahajuddin came and surrounded the house of Asalat with more than 100 armed men and was with difficulty ‑persuaded to leave the place on promise of a salish to be held on Monday which apparently did not satisfy him. He did not wait for the salish day but on the very next day, in the afternoon, he came with an armed band of about 150 men and killed two persons and injured a number of people including two women of the houses of Arab Ali and Hussain Ali.
The evidence of P. W. 2 (Parisan Bibi), the sister of Arab Ali, who is an eye‑witness to the occurrence, establishes the guilt of appellant No. 10 (Akbar Ali Sarkar alias Akbar Ali) who hurt her with a holonga near the throat and that of appellant No. 8 (Mobarak Ali Sardar alias Mobarak Ali Sarkar) who struck her on the leg with a fala. She is corroborated on this point by her brother Babar Ali (P. W. 4). She also speaks about the assaults on Babar Ali by appellant No. 9 (Salat Sardar) with a holonga and by appellant Suhrab with a brick‑bat on the left eye of Babar Ali.
Mr. Ismail has criticised the evidence of P. W. 3 (Arab Ali) with regard to his having seen the assaults on Gazibur and Akbar on the ground that if he was the first man to escape into the but and run away through the back door, he certainly could not have seen the attack on Gazibur and Akbar. This contention of Mr. Ismail seems to be acceptable and we leave out the evidence of Arab Ali on the point of the assaults on Gazibur and Akbar. Even then, that does not weaken the prosecution case. P. W. 5 (Khajiran Bibi) has spoken about appellants Haran and Moin Sardar striking her husband Hussain Ali with holongas and about appellant Imam Ali striking Hussain Ali on the chest with a fala P. W. 8 (Hassain Ali) has corroborated his wife on this point. P. W. 9 (Asalat Molla) has spoken about the details of the attack on his house and the order given by appellant Bahajuddin for the said attack. He has also spoken about the killing of Gazibur by appellant Imam Sardar with a faia and of Akbar by appellant Sagar Ali with a fala and by each of.the appellants Talib, Muqsed, Saken and Hamid with a holonga P. W. 11 (Md. Osman Gani) has corroborated in all material particulars the evidence of P. W.' 9 and, as we have already stated, P. Ws. 14, 15 and 16 (Sekandar Molla, Nefazuddin Shaikh and Shahjahan Ali) also have spoken about the occurrence in the house of Asalat as seen by them.
P. W. 10 (Dr. Abdul Quadir) examined the injuries on the persons of P. Ws. Parisan Bibi, Khajiran, Hussain Ali, Babar Ali, Shahjahan and Sekandar. His evidence amply corroborates the evidence of the prosecution witnesses with regard to the injuries caused to these P. Ws. by some of the appellants.
P. W. 1 (Anwar‑ul‑Haque) is the medical officer in charge of the Sirajganj Hospital who held post‑mortem examination on the dead bodies of Akbar and Gazibur: His evidence amply corroborates the evidence of the eye‑witnesses who saw Gazibur and Akbar being killed by appellants 1 and 2‑6. He found the following injuries on the dead body of Gazibur:‑--
"1. One punctured wound 3/4" in diameter situated on the 8th inter-coastal space mid axilary line‑left 'side. On dissection it was found that it had pierced the inter-coastal muscles, plura, left lung, peritonium and posterior wall of the stomach. The direction of the wound was obliquely from behind to forward, Plural cavity, abdominal cavity and the stomach contained fluid blood. The abdominal cavity also contained partially digested food material. The wound in the stomach was " x ".
2. Extravasations of blood found on dissection on the right cheek 2" x 2", clotted blood found in the injury, stomach contained partially digested food materials 10 oz. other organs of the body were decomposed."
Death of Gazibur, in the opinion of the doctor, was due to haemorrhage and shock as a result of injury No. 1 which was ante‑mortem and homicidal in nature and which was caused by some sharp and pointed weapon such as fala. The other injuries, according to the medical officer, might have been caused by hard and blunt substance, or by fall on some hard substance.
The doctor (P. W. 1) found the following injuries on the dead body of Akbar:‑
"1. One punctured wound " in diameter situated 1" below the umbilicus directing from front to backwards. On opening the abdomen it was found that it bad pierced the abdominal muscle, peritonium and small intestine in one place with 1/3' in diameter. The abdominal cavity contained foecal matter and fluid blood.
2. One punctured wound " in diameter situated on the left mind axilary line on the fourth inter-coastal space directing towards the thorasix cavity transversely. On opening the thorax it was found that it had pierced the intercoastal muscle, plura, left lung, peri‑cardium and outer border of the left cavity. Left plura cavity and pericardial sack were found full of fluid blood.
3. One punctured wound " in :diameter with 1 " depth situated on the axilary border of the left scapula.
4. One punctured wound " in diameter situated below the injuries angle of the right scapula directing into the thorasix cavity. On dissection it was found that it had pierced the right lung upper lobe " the right plural cavity contained blood. '
5. One punctured wound " diameter situated below the right buttock. Clotted blood found in the injury. , Stomach was found almost full containing partially digested food material 10 oz. Other organs of the body were decomposed."
Death of Akbar, in the opinion of the medical officer, was due to shock and haemorrhage as a result of, injury to the heart accentuated by the cumulative effect of all other injuries which were antemortem and homicidal in nature and which were caused by some sharp and pointed weapons such as fala and holonga. According to the doctor, the other injuries, except No. 5, were fatal but injury No. 2 was the severest.
Appellant No. 1 (Imam Ali alias Eman Sardar) has been found guilty under section 324 of the Pakistan Penal Code for causing hurt to Khajiran with a fala. He has also been found guilty under section 304, Part I, of the Penal Code for having killed Gazibur with a fala blow on his chest. Appellants Nos. 2‑6 have been found guilty under section 304(1)/34 of the Code for killing Akbar. The evidence is that each of the appellants Taleb Ali, Maqsud Ali, Saken Sardar and Hamid Ali struck deceased Akbar with a holonga whereas appellant Sagar Ali pierced him with a fala. Appellant No. 7 (Bajuddin Sarkar alias Bahajuddin Sarkar) has been found guilty under section 304(1)/109 of the Penal Coda for having abetted the killing of Gazibur and Akbor. Appellants Nos. 8‑14 have been found guilty under section 324 of the said Code, appellant No. 8 for causing hurt to Parisan Bibi with a fala, appellant hurt to Parisan Bibi with a fala, appellant No. 9 for giving a holonga blow to Babar Ali, appellant No. 10 for holonga blow to Farisan, appellants Nos. 11 and 12 for holonga blows to Hussain, appellant No. 13 for holonga blow to Shahjahan, and appellant No. 14 for holonga blow to Sekandar Ali. Appellant No. 15 has been found guilty under section 323 of the Code for having struck Babar Ali with a brickbat.
Having considered the entire facts obtaining in this case, we have come to the conclusion that the occurrence which started from the houses of Arab Ali and Hussain Ali reached its climax in the house of Asalat Molla where Akbar and Gazibur were killed in addition to infliction of, severe injuries on some other persons of the complainant's side by appellant‑Bahajuddin Sarkar and his party men. We are also of the view that the occur rence did not at all take place on the disputed plot of land where the defence wanted to shift it by giving positive evidence. That evidence, too, as given by the defence, has completely failed as we have already shown from the answer given by D. W. 1 (Susthir Molla) in his cross‑examination.
We have given our‑serious thought to the omission of Babar Ali, Parisan Bibi, Hussain and Khajiran in telling other people about the injuries sustained by them immediately after the occurrence. In view of the fact that we have found that the occurrence took place, as stated by the prosecution, in the houses of Arab Ali, Hussain and Asalat, we do not think that that omission is of any vital importance to damage the prosecution case. The conduct of Arab Ali, too, does not seem to us to be in any way unnatural or incompatible with the facts and circumstances prevailing during and immediately after the occurrence; and though' we do not accept Arab Ali's evidence on his seeing the killing of Akbor and Gazibur, yet we do not disbelieve him on the other aspects of the prosecution case as related by him.
We have, after a very serious consideration, accepted the evidence of the prosecution witnesses who witnessed the occurrence. Once the prosecution story is accepted, the suggestion of a fight between the parties on the disputed land and the question of the right of private defence of persons on the part of the assailants disappear.
Appellant Bahajuddin Sarkar with more than 100 armed persons had no cause to raid the houses of the victims and to injure a number of persons of those houses in addition to killing two persons in the house of Asalat. This act of Bahajuddin and his party men can be termed to be one of the worst types of high‑handedness and lawlessness that could be committed in broad daylight by a band of marauders. Appellants Nos. 1‑6 in our considered opinion have intentionally caused the death of Gazibur and Akbor, and appellant No. 7 has abetted the offences of the said killing knowingly.
In the facts and circumstances of the case, we find that the sentence of 7 years' rigorous imprisonment under section 304, Part I, of 'the Penal Code in the case of appellant No. 2 and under the said section read with section 34 of the Code in the case of appellants Nos. 2‑6 and the sentence of 5 years' R. I. under section 304 (I)/109 of the Code in respect of appellant No. 7 seem to us to be inadequate. The case, in our opinion, should not have been transferred to the Court of the Assistant Sessions Judge by the learned Sessions Judge of Pabna, Mr. A. M. Hossain, as even the learned Assistant Sessions Judge after recording of the evidence found the, case to come within section 302 of the Penal Code but‑ expressed his helplessness in dealing with the matter adequately in view of the fact that he, being an Assistant Sessions Judge, had no powers to inflict a sentence of more than seven years.
We have given our anxious consideration to the cases of appellants Nos. 1‑7 in this behalf and, having considered the entire evidence on record and the submissions of the learned Advocates, come unhesitatingly to the conclusion that any sentence of less than ten years' rigorous imprisonment will 'not be adequate for the offences committed by them.
In the result, we dismiss the appeal of all the appellants. We affirm the convictions and sentences of appellants Nos. 1,6 (Imam Ali alias Eman Sardar, Taleb Ali Sardar alias Taleb Ali Sarkar, Masud Ali Sardar alias Moqsed Ali Sarkar, Sekem Sardar, Hamid Ali Sardar and Sagar Ali Sardar alias Sagorali Sarkar) and 8‑14 (Mobarak Ali Sardar alias Mobarak Ali Sarkar. Salat Sardar alias Silat Sardar, Akbar Ali Sardar alias Akbar Ali , Haran Sardar. Moin Sardar, Chandu Molla, and Nur Bux Sardar alias Nur Bux Sarkar) under section 148 of the Penal Code, of appellants 1 and 8‑14 under section 324 of the Code, of appellants Nos. 7 and 15 (Bajuddin Sarkar alias Bahajuddin Sarkar and Suhrab Ali Sardar alias Sorab Sardar under section 147, P. P. C. and of appellant No. 15 under section 323 of the said Code.
We also affirm the conviction of appellant No. 1 under section 304, Part I, of the Penal Code, of appellants Nos. 2‑6 under section 304 (i)/34 of the said Code, and of appellant No. 7 under section 304 (i)/109 of the Code, and as regards their sentences under the said charges we make the Rule, issued suo motu by this Court, absolute and enhance their sentences to ode of rigorous imprisonment for ten years each.
With regard to the powers of the High Court in respect of enhancement of sentence, we have kept in view the provisions of section 439 of the Code of Criminal Procedure. We find that except in the case mentioned in subsection (3) of section 439, Cr. P. C. the powers of the High Court are in no way restricted in enhancing the sentence imposed upon an accused by the trial Court. We may in this connection refer to the cases of Emperor v. Ram Nath and others (A I R 1935 All. 989), Raja Ram v. Emperor (A I R 1935 Oudh 239) and Sarjug Rai and others v. The State of Bihar (P L D 1958 S C (Ind.) 333). In all these cases it has been held that the High Court has the power to enhance a sentence beyond the limits of the powers of the trial Court to impose a sentence upon an accused. Enhancement of sentence by the High Court is not controlled by the powers of the trial Court but by the sentence provided for in the section under which the accused is charged.
Appellants Nos. 8‑14 are directed to surrender forthwith to their bail to serve out the sentences imposed upon them,
.‑I agree. ,
K. B. A.' Appeal dismissed.
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