Page No.# 1/6 GAHC010030452019 2026:GAU-AS:13621 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./127/2019 ISMAIL HUSSAIN S/O- LATE NASIMUDDIN, VILL.- HAJIPARA, P.O. AND P.S. HOWLY, DIST.- BARPETA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REP. BY THE P.P., ASSAM. 2:MIR HUSSAIN S/O- LATE KACHIMUDDIN VILL.- BOGAIJANPARA P.O. AND P.S. HOWLY DIST.- BARPETA ASSAM Advocate for the appellant : Mr. M.H. Ahmed, Adv. Advocate for the respondents : Mr. R.R. Kaushik, APP, Assam. Mr. M. Dutta, Sr. Adv. (R/2) Mr. N. Bordoloi, Adv. - B E F O R E - HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE NCHUMBEMO MOZHUI Page No.# 2/6 Date of hearing and judgement : 15/09/2026 JUDGMENT & ORDER (ORAL) (M. Zothankhuma, J) 1. Heard Mr. M.H. Ahmed, learned counsel for the appellant (informant). Also heard Mr. R.R. Kaushik, learned APP, Assam, appearing for the State and Mr. M. Dutta, learned senior counsel and Amicus Curiae, assisted by Mr. N. Bordoloi, learned counsel for the respondent no. 2. 2. The present appeal has been filed by the informant against the impugned judgment dated 15/12/2018, passed by the Court of the learned Additional Sessions Judge, Barpeta, in Sessions case no. 111/2017, by which the respondent no. 2 has been acquitted of the charges framed against him under Sections 302/341 IPC. 3. The facts of the case in brief, is that the Prosecution Witness -1 (informant) submitted an FIR dated 20/08/2013 to the Officer-in-Charge of Howly Police Station, stating that his son Jiyarul Haque had been assaulted by the accused no.1 Sanidul Islam on 18/08/2013 at 3 p.m. At about 9 p.m. of the same day, when his son was coming home from his mobile repairing shop, the 4 (four) accused persons, i.e. Sanidul Islam, Mohir Uddin, Saleha Khatun and Mir Hussain (Respondent no.2) stopped him in front of their house and inflicted severe injuries on different parts of his body by assaulting him with a wooden batten and lathi. On learning about the incident, they went to the house of the accused persons and took the injured person in a Maruti four wheeler to Barpeta Medical College for treatment. The informant's son was thereafter referred to Gauhati Medical College and Hospital (GMCH). However, his son breathed his last in GMCH at 1 p.m. on 19/08/2013. Pursuant to the FIR, Howly PS case no. 509/2013 under Sections 341/325/302/34 IPC was registered. 4. After investigation had been completed by the Investigating Officer (IO) (PW-3), charge sheet was submitted against the accused Sanidul Islam and absconder Mir Hussain (respondent no.2) under Sections 344/302/34 IPC. However, as accused Sanidul Islam was found to be a juvenile, he was made to appear before the Juvenile Justice Board. 5. The learned Trial Court thereafter framed two charges against the respondent no.2, i.e. under section 341 IPC and 302 IPC, to which the respondent no. 2 pleaded not guilty and claimed to be tried. 6. The learned Trial Court thereafter examined 8 Prosecution Witnesses and after examining the respondent no. 2, under Section 313 Cr. PC, the learned Trial Court came to a finding that the prosecution evidence failed to bring home the guilt of the respondent no. 2 by way of credible and Page No.# 3/6 trustworthy evidence for convicting him under Sections 302/34 IPC. The learned Trial Court by the impugned judgment accordingly acquitted the respondent no.2 from the charges under Section 302/341 IPC, by giving him the benefit of doubt. 7. The learned counsel for the appellant (informant) submits that the impugned judgment was erroneous and should be set aside in view of the fact that the evidence of PWs 1, 4 and 5, clearly shows that the respondent no.2 was present along with the accused no.1 Sanidul Islam at the time Sanidul had assaulted the deceased with a lathi. However, the respondent no. 2 had not made any attempt to stop the assault. Instead, the respondent no. 2 had hit the chest and abdomen of the deceased with his fist blow. 8. The learned counsel for the appellant also submits that as per the evidence of PW-5, the respondent no. 2 had slapped the deceased on his cheek. 9. The learned APP and the learned senior counsel for the respondent no.2 submit that no case of murder has been proved against the respondent no.2 as has been rightly decided by the learned Trial Court. They submit that when there was no charges framed against the respondent no. 2 alleging furtherance of the common intention or prosecution of a common object in the killing of the deceased, there is no question of there being any intention to kill the deceased by slapping him on the part of the respondent no.2. They also submit that the medical evidence of the Doctor, does not prove that the injuries caused to the deceased, resulted from the slaps and fist blows given on the body of the deceased by the respondent no.2. 10. We have heard the learned counsels for the parties. 11. The evidence of the appellant herein, who was PW-1, is to effect that on hearing of the assault on his son (deceased) by the respondents, he and his wife (PW-4) had rushed to the place of occurrence and he had seen the respondent no.2 giving fist blows on the chest and abdomen of the deceased. However, his evidence of PW-1 was also to the effect that when he and his wife had reached the place of occurrence, they saw the accused nos. 2, 3 & 4 were about to take his deceased son to the hospital for treatment and that they also bore the expenses incurred in the treatment of their son. 12. The evidence of PWs -2 and 3 does not state anything about any person being the perpetrators of the assault made on the deceased. 13. The evidence of PW-4, who is the mother of the deceased, is to the effect that on hearing about Page No.# 4/6 the assault on their son, she and PW-1 rushed to the place of occurrence, where they saw that respondent no. 2 giving a fist blow on the abdomen of her son. 14. The evidence of PW-5 is to the effect that, on hearing a hue and cry at around 9 p.m., when he was in his house, he rushed to the place of occurrence and heard that the accused Sanidul Islam had assaulted the deceased with a lathi, and that the respondent no.2 had slapped the deceased. In his cross- examination, PW-5 stated that respondent no.2 had given a few slaps to the deceased on his cheek. 15. The evidence of PW-6 is to the effect that, he had not seen the incident. 16. The evidence of PW-7, who is the Doctor, who had conducted the post-mortem examination on the deceased, was that he had seen the following injuries on the deceased :- “Injuries: 1. Contusion of the size 6 cm present over the posterior region of the left chest 1 cm from the posterior axillary line and 6 cm from midline and 7 cm from angle of the left scapula. Contusion of size 5 cm is present over the lateral aspect of the left forearm. 2 cm above from the olecranon process. 2. Scalp injury Contusion of size 20 cm x 10 cm present over the right temporoparital area. Right temporal muscle contused. 3. Skull injury Depressed fracture of size 2 cm x 2 cm present over the right parital bone 2 cm from the midline and 7 cm from the right supra orbital ridges with radiating feature fractures of length 10 cm extending up to right temporal bone and another radiating feature fracture of length 4 cm extending up to right frontal bone. 4. Vertebra healthy. 5. Membrain Extradural haemorrage of size 12 cm and 7 cm and 2 cm each present over the right parital area. Minimal sub-dural haemorrage each present over the right parital area. 6. Brain - Congested. 7. Liver, Spleen - Congested. 8. Both Kidneys and Bladder - Congested. 9. Abdominal wall - Healthy. 10. Peritoneum - Congested. 11. Mucosa stomach - congested and empty. Page No.# 5/6 12. Small intestine and mucosa - congested and contains blue like matter without suspicious smell. [13. Large intestine mucosa -Congested and contains gracious and fecal matters. Opinion - In my opinion death was due to comma as a result of injuries sustain over head as described. All the injuries were anti-morten and caused by blunt force impact and homicidal in nature. Time since death 12-24 hours approximately. Exhibit 2 is the postmortem report and exhibit 2(1) is my signature.” 17. The evidence of PW-8, who is the Investigation Officer, is to the effect that the deceased had been assaulted by the accused Sanidul Islam with a lathi on his head. PW-8 also states that he had sent the accused Sanidul Islam to the Juvenile Board as he was found to be a juvenile. 18. The examination of the respondent no. 2 under Section 313 Cr. PC shows that he has denied giving any fist blow to the deceased. 19. The learned Trial Court in the impugned judgment, had come to a finding that the prosecution had not been able to prove the guilt of the respondent no. 2 under section 302 IPC and 341 IPC by giving the benefit of doubt, by holding that the injury sustained by the deceased could not be said to have been caused by the respondent no. 2. Further, the accused Sanidul Islam, who had assaulted the deceased with a lathi on his head. 20. On perusing the evidence of the Prosecution Witnesses, especially PWs- 1 and 4, the same does not appear to us to show that PWs- 1 and 4 were eyewitnesses to the respondent no. 2, boxing the chest and abdomen of the deceased. PW- 5 also only speaks of hearing that the respondent no. 2 had slapped the deceased on his cheek. 21. Even if we have to assume that PWs- 1 and 4 were eyewitnesses to the respondent no. 2 boxing the chest and abdomen of the deceased with his fist, we find that the injuries sustained by the deceased and the opinion of the Doctor as to the cause of death, was due to a coma, which resulted due to injuries sustained on the head of the deceased. The injuries that have been enumerated by the Doctor (PW-7) in his evidence, are all related to the head and as such, it is quite apparent that the deceased did not die of any slap given or being boxed on the body by the respondent no. 2, but by the injuries caused by the lathi used by the accused juvenile Sanidul Islam. Page No.# 6/6 22. In view of the reasons stated above, we do not find any reason to interfere with the findings of the learned Trial Court, which is to the effect that the prosecution has not been able to prove that the action of the respondent no. 2 could have caused the death of the deceased. Furthermore, the complicity or in furtherance of the common intention to kill under Section 34 IPC of the respondent no. 2 vis-a-vis accused Sanidul Islam in causing the death of the deceased cannot be assumed, inasmuch as, no charges had been framed by the learned Trial Court under Section 34 of the IPC. 23. Consequently, for the reasons stated above, the appeals stand dismissed. 24. Send back the TCR. 25. In appreciation of the assistance provided by Mr. M. Dutta, learned Amicus Curiae, his fees should be paid by the Gauhati High Court Legal Services Committee, as per norms. JUDGE JUDGE Comparing Assistant