P L D 1966 Dacca 83 (PLP)

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, SALAHUDDIN AHMHD, J.‑I agree. , K. B. A.' Appeal dismissed.