Gauhati High Court
Crl.A./144/2014 on 23 December, 2021
Page No.# 1/33
GAHC010009312014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./144/2014
Md. Abdul Mannan,
S/o late Abdul Khalik,
Village-Oksek Pathar Gaon.
P.S.-Muhrajhar,
Dist-Nagaon, Assam.
.......Appellant
-Versus-
1. State of Assam.
2. Md. Arifuddin,
S/O late Mujahid Ali,
3. Md. Abdul Rokib,
S/O late Watir Ali,
4. Md. Namar Ali,
S/O late Haji Fater Ali,
5. Md. Joyrul [email protected] Johirul Islam,
S/O Md. Kuti Miyan.
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6. Mustt Alfatun Nessa,
W/O late Abdur Sukur.
7. Md. Islamuddin,
S/O Musaid Ali,
8. Md. Baharuddin,
S/O late Abdus Sukur.
All are of Dakhin Devasthan Gaon, P.S.-Murajar.
9. Md. Mukteruddin
S/O late Mosaid Ali.
10. Md. Suraj Ali,
S/O late Yakub Ali.
All are of Dakhin Debasthan Gidar Basti, P.S.-Murajhar, Dist-
Nagaon, Assam.
......Respondents/Accused
Before
Hon'ble Mr. Justice N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
Advocate for the Appellant: 1.Mr. A. Alam
Advocate for the Respondents: 1. Mr. FKR Ahmed,
2. Mr. P. Borthakur, APP
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Date of Hearing : 16.11.2021.
Date of Judgment : 23.12.2021.
JUDGMENT AND ORDER
[M. Nandi J.]
1. This appeal has been preferred against the Judgment and Order
dated 06.02.2014 in connection with Sessions Case No.
69(N)/2011 passed by learned Additional Sessions Judge, Hojai
acquitting the respondent Nos. 2 to 10 by showing the ground that
the prosecution has failed to prove the case against them beyond
all reasonable doubts.
2. While deciding the appeal, we are guided by the principle
laid down by Hon'ble Apex Court from time to time.
The Hon'ble Apex Court has propounded the following
principles in Padam Singh Vs. State of U.P. reported in 2000 (1)
SCC 621 which are reproduced as follows:-
3. "it is the duty of an appellate court to look into the evidence
adduced in the case and arrive at an independant conclusion as to
whether the said evidence can be relied upon or not and even if it
can be relied upon, then whether the prosecution can be said to
have been proved beyond reasonable doubt on the said evidence.
The credibility of a witness has to be adjudged by the appellate
court in drawing inference from proved and admitted facts. It
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must be remembered that the appellate court, like the trial court,
has to be satisfied affirmatively that the prosecution case is
substantially true and the guilt of the accused has been proved
beyond all reasonable doubt as the presumption of innocence
with which the accused starts, continues right through until he is
held guilty by the final court of appeal and that presumption is
neither strengthened by an acquittal nor weakened by a
conviction in the trial court."
4. The guidelines have been reiterated by three Judges Bench
of the Hon'ble Apex Court in case of Majjal Vs. State of Haryana,
reported in 2013 (6) SCC 798 which read as follows:-
5. "It was necessary for the High Court to consider whether the
trial court's assessment of the evidence and its opinion that the
appellant must be convicted deserve to be confirmed. This
exercise is necessary because the personal liberty of an accused is
curtailed because of the conviction. The High Court must state its
reasons why it is accepting the evidence on record. The High
Court's concurrence with the trial court's view would be
acceptable only if it is supported by reasons. In such appeals it is a
court of first appeal. Reasons cannot be cryptic. By this, we do not
mean that the High Court is expected to write an unduly long
treatise. The judgment may be short but must reflect proper
application of mind to vital evidence and important submissions
which to to the root of the matter."
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The aforesaid observations have been quoted by the Hon'ble
Apex Court in the case of Kamalesh Prabhu Tanna Vs. State of
Gujarat, reported in 2014 Cr.LJ 443.
6. Keeping in view the propositions cited above, this Court is to
scrutinize the evidence available before us afresh and to draw the
conclusion accordingly, bearing in mind the presumption of
innocence of accused unless otherwise is established from
evidence available on record without being influenced by the
findings recorded by the learned Trial Court.
7. The brief facts of the case is that the appellant/informant
Abdul Mannan lodged an ejahar before the O.C. Muhrajhar P.S.
stating inter-alia that his niece Mustt Sahena Begum was married
to one Johirul Islam of Village Dakhin Devasthan Gidar Basti,
about 2 years back. On hearing the news that his said niece was
being assaulted by her husband, his brother Abdul Sahid along
with Nur lslam of Dighaljar went to his daughter's house at about
2:00 P.M. on 24.10.2008. After they had reached there the
accused persons namely Johirul Islam, Arifuddin, Mukter Ali,
Islamuddin, Samjid Ali, Suraj Ali, Suratun Nessa, Baharuddin and
Alfatun Nessa armed with deadly weapons like dao, lathi, rod etc.
assaulted his brother Abdul Sahid and Nur Islam and as a result
Abdul Sahid died inside the house of his son-in-law and though
Nur Islam sustained injury, he could somehow save his life.
8. On receipt of the FIR, a case was registered under Sections
147/148/149/323/302 IPC and after completion of investigation,
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charge-sheet was submitted against the aforesaid accused persons
showing Baharuddin as absconder. During trial all the accused
persons put their appearance before the Court and they were
enlarged on bail and charge was framed under Sections
147/148/302/323/149 IPC which were read over and explained to
the accused persons to which they pleaded not guilty and claimed
to be tried.
9. The prosecution examined as many as 7 witnesses including
the I.O. and the Medical Officer. The plea of the defence was of
total denial.
10. After completion of the trial, the learned Additional Sessions
Judge, Hojai acquitted the accused persons on the ground that the
prosecution failed to prove the case against the accused persons
beyond all reasonable doubts.
11. Being highly aggrieved and dissatisfied with the judgment
and order dated 06.02.2014 the appellant has preferred this
appeal on the following grounds:-
GROUNDS:
(i) That the learned Additional Sessions Judge committed grave
errors of law, as well as of facts, in acquitting all the accused
persons holding that the Prosecution has failed to prove the case
against them beyond all reasonable doubts and therefore, the
impugned Judgment and Order is liable to be set aside and
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quashed.
(ii) That the learned Court below; without sifting the evidence and
without making any sincere efforts to scrutinize the entire
materials on record, with superficial approach, proceeded to acquit
the accused persons; as such, the impugned Judgment and Order
is liable to be set aside and quashed.
(iii) That the learned Trial Court overlooked and ignored the
evidence of the two most important eyewitnesses of the
Prosecution as well as their statement recorded under Section 164
Cr.P.C., but yet such clear, consistent and cogent evidence
incriminating the accused persons were overlooked. As such it can
be said that the decision of the learned Lower Court is clearly
perverse and requires to be interfered with for the ends of Justice.
12. It was urged by learned counsel for the appellant that the
paramount consideration of the court should be to avoid
miscarriage of justice. A miscarriage of justice which may arise
from the acquittal of the guilty is no less detrimental to society
than from the conviction of an innocent. In a case where the trial
court has taken a view based upon conjectures and hypothesis
and not on the legal evidence, a duly is cast upon the appellate
High Court to reappreciate the evidence in acquittal appeal for the
purposes of ascertaining as to whether the accused has committed
any offence or not. Probable view taken by the trial court which
may not be disturbed in the appeal is such a view which is based
upon legal and admissible evidence. Only because the accused has
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been acquitted by the trial court, cannot be made a basis to urge
that the High Court under all circumstances should not disturb
such a finding.
In support of his submissions, the learned counsel has
placed reliance on the following case laws:-
(1) (1983) 3 SCC 502: (State of Uttar Pradesh -Vs- Pussu @ Ram
Kishore);
(2) (2007) 4 SCC 415: (Chandrappa & ors -Vs- State of
Karnataka).
13. On the contrary, learned counsel for the
accused/respondents has submitted that the accused is presumed
innocent until proven guilty. The Trial Court's acquittal bolsters the
presumption that he is innocent. On proper analysis of the ratio
and findings of this case, it is revealed that the findings of the Trial
Court are based on the fundamental principles of the criminal
jurisprudence. Presumption of innocence in favour of the accused
further gets reinforced and strengthened by the acquittal of the
Trail Court. Due or proper weight and consideration must be given
to the trial court's decisions. It is a well-established principle of
criminal jurisprudence that when two possible and plausible
explanations co-exist, the explanation favourable to the accused
should be adopted.
Learned counsel cited the following case law in support of
his contention. Ghurey Lal - Vs- State of Uttar Pradesh (2008) 10
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SCC 450.
14. We have heard learned counsel for the parties and gone
through the judgment of the learned Trial Court and perused the
documents available in the record.
15. It appears that there are two eye witnesses to the incident.
PW 1 is Nur lslam who accompanied the deceased Abdul Sahid on
the date of incident to the house of accused Johirul, son-in-law of
the deceased and PW 5 Sahena Begum, daughter of the deceased
who got married to the accused Johirul.
16. PW 1 Nur Islam deposed in his evidence that the incident
took place in the year 2008. On the day of the occurrence,
deceased Abdul Sahid told him that his daughter had a problem
and he should go to the house of Johirul Islam. Around 2 P.M.
Sahid and he went to the house of accused Johirul. A sitting was
held in their house and they resolved the problem. Islam and
Bahar rebuked Sahid(deceased). When it was asked as to why
Sahid was rebuked, Islam and Bahar started to assault Sahid with
bare hands at first. Then Bahar's mother Alfatun brought a dao
and gave it to Bahar. Islam took a sel (a thin strip of iron). Bahar
and Islam struck Sahid with sel and dao. When he (PW 1) put
resistance, Suraj and Babul assaulted him (PW 1). Accused Suraj
and Babul incited Islam and Bahar to assault Sahid. He ran away
from the place of occurrence and informed police about the matter
to the Hawraghat P.S. Along with the police he again came to the
place of occurrence and found Sahid lying dead there. This witness
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further stated that Samjid incited Bahar and Islam to assault
Sahid. When Suratun Nessa brought a rod and gave it to Johirul,
he assaulted his father-in-law Sahid. He (PW1) had seen injuries
on forehead, arm and chest of the deceased.
17. In his cross examination PW 1 replied that when he put
resistance while Sahid was being assaulted, Bahar and Islam had
not assaulted him. Having heard hue and cry, Alfatun brought dao
from her house. Islam kept pressing Sahid's neck while Bahar
assaulted him. Hearing hue and cry, Babul and Suraj came out
from their house.
18. PW 5 Sahena Begum, daughter of the deceased, deposed in
her evidence that the deceased was her father. Accused Johirul is
her husband. Other accused persons are Johirul's maternal uncle
and relatives. The incident took place in the year 2008. Her
husband used to demand money and assault her. On the day of
the incident Johirul called her father to his house. She told her
father that Johirul and Bahar assaulted her. When her father asked
them about such assault, Islam caught hold of collar of his shirt
and thereafter, Samjid and Islam assaulted him. Thereafter,
Johirul, Bahar, Islam, Mukter, Samjid and Suraj assaulted his father
with rod, sabul, lenja and other weapons. When she raised alarm
Alfatun gagged her mouth and Suratun assaulted her. Her father
sustained injury on his head, chest and arm. When her father
came to her house Nur Islam also came with him.
19. In her cross examination PW 5 replied that the incident of
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assault took place inside the house of her husband Johirul. At first
Bahar and Islam assaulted her father. Johirul had started
assaulting her since 6 months prior to the incident. She did not file
any case in connection with such assault caused by Johirul. She
informed her parents that Johirul used to demand money from her.
Her father came to Johirul's house in the afternoon.
20. Admittedly, PW 2, PW 3, PW 4 were not present at the time
of incident but they had supported the case by stating that when
they went to the house of Johirul after hearing hue and cry, they
found Abdul Sahid lying dead inside the house of the accused
Johirul. PW 2, PW 3 and PW 4 clearly stated that on being asked
PW 1 and PW 5 disclosed that accused Johirul, Bahar, Samjid,
Mukter Ali, Islamuddin, Suraj Ali, Suratun Nessa and Alfatun had
assaulted Abdul Sahid. As a result, he died. PW 2, PW 3 and PW 4
also stated that they had seen injuries on the head of the
deceased. Brain materials came out from the head of the
deceased. PW 2 and 4 specifically stated that they had seen a
sabul (an instrument in digging the earth) and a rod and a dao
lying near the dead body. Police seized the said articles and
prepared seizure list wherein, they put their signatures.
21. Learned counsel for the accused/respondents have further
argued that the ocular evidence did not support the Medical
Evidence as the witnesses stated that the accused used dao while
assaulting the deceased but there was no sharp cutting injury
found by the Medical Officer on the person of the deceased.
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Doctor found only one lacerated injury on head of the deceased
and the learned trial court has rightly opined that the injury
sustained by the deceased might be caused due to fall on hard
substance or the death was accidental.
22. On the other hand, learned counsel for the appellant has
contended that the observation of the learned Trial Judge clearly
runs counter to the findings of facts recorded by the Medical
Officer and the findings of facts must have to be allowed to prevail
over the inferential opinion of the learned Trial Judge. The learned
Trial Judge was perhaps under the impression that there was only
one injury on the head of the deceased but apparently, the
Medical Officer has recorded that all the injuries were antemortem
in nature. Moreover, there was no such suggestion put to the
Medical Officer that such injury may be caused by fall on hard
surface. No answer was elicited either by the defence or by the
learned Trial Judge from the Medical Officer that injury sustained
by the deceased Abdul Sahid on his head resulting in
instantaneous death or could be result of fall on hard surface or
that the head injuries may be accidental. So the opinion of the
learned Trial Judge is based on mere surmise and conjecture
which does not have any factual support. The view taken by the
learned Trial Judge is contrary to the clear and specific findings
recorded by the Medical Officer and therefore, clearly perverse.
23. Let us have a look on the evidence of PW 6, the Medical
Officer, who conducted autopsy on the dead body of Abdul Sahid.
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He deposed in his evidence that on 25.10.2008, he was working as
SDM & HO, at Civil Hospital, Nagaon. On that day, as per police
requisition he conducted post mortem examination on the dead
body of Abdul Sahid. During post mortem he found rigor mortis
was present. Presence of lacerated injury over left parietal region
of size 2"X¼"X¼" with multiple fracture of left parietal bone and
rupture of membrane at left parietal region Epidural and subdural
blood clot firmly adherent to injury side. Multiple inferential blood
clot seen at left parietal brain matter.
24. In his cross examination, the Medical Officer has replied that
the chief injury was head injury.
25. Apparently, all the witnesses supported the findings of
Medical Officer on the point that they had seen injuries on the
head of the deceased. From the evidence of Medical Officer, it is
crystal clear that the Medical Officer found multiple injuries on the
head of the deceased. Laterated injuries with multiple fracture of
left parietal bone and rupture of membrane of left parietal region
which can only be possible by use of several blows of weapons like
dao, sabul, rod etc. It is true that Medical Officer has no where
mentioned what type of weapon was used in causing death of the
deceased and whether the death was homicidal or accidental but
from the evidence of PW 6 it reveals that there was no cross
examination on the point by the defence.
26. The Medical Officer has hardly been cross-examined and not
even a suggestion has been made to him that the injuries to the
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deceased has been caused due to fall on hard substance or death
was accidental. Alternatively, the deceased died of homicidal
death. On that point also no question was asked by the defence to
the Medical Officer as to the cause of death whether homicidal or
accidental. Though there is no specific evidence as to the cause of
death but from the post-mortem report as well as evidence of
Medical Officer (PW 6) it reveals that the deceased sustained
several injuries on his head, fracture of parietal bone and rupture
of membrane of left parietal region. Nothing substantial could be
brought out in cross-examination of Medical Officer. In view of
this evidence, it becomes clear that deceased Abdul Sahid died of
homicidal death. As such, we are not inclined to accept the view of
learned Trial Court that the death of the deceased might be
caused due to fall on hard substance or it was an accidental death.
27. Another contention argued by learned counsel for the
appellant is that the dead body of the deceased Abdul Sahid was
found inside the house of his son-in-law accused Johirul and the
accused is to explain the facts best known to him and failure to
explain satisfactorily will go against him and Section 106 of
Evidence Act has come into play. In support of his submissions,
learned counsel has relied on the following decisions of Hon'ble
Supreme Court:
(1) (2006) 10 SCC 681 Trimukh Maroti Kirkan Vs. State of
Maharashtra.
(2) 1997 CRILJ 774 (SC) State of Madhya Pradesh Vs. Gangulla
Page No.# 15/33
Satya Murthy.
28. In the case at hand, admittedly, the dead body of the
deceased was found inside the house of accused Johirul. The fact
was not denied by the accused/respondent Nos. 2 to 10. PW 2,
PW 3 and PW 4 categorically stated that on hearing hue and cry
from the house of accused Johirul, they went there and found the
dead body of deceased Abdul Sahid lying inside the house of
Johirul with injuries on his person. There was no time gap
between hearing the hue and cry and these witnesses seeing the
injured body of the deceased inside the house. Inquest report of
the deceased also shows that inquest of the deceased was
conducted in the house of the accused Johirul. Since the
occurrence has taken place inside the house of the accused
Johirul, therefore in such circumstances, explanation of the
accused/respondent Johirul, assumes significance for only he can
dispel and negate the prosecution evidence.
29. When a crime is committed within the confines of a place
which is in occupation of a person and there is no possibility of
any other person having come or operated from such place, such
a person needs to disclose the facts and give an explanation about
what happened, as he only has the specific information about it.
In such circumstances, the law puts the onus on such fact
knowing person to come up with such an explanation. We clarify
that the initial burden of proving the guilt of the accused remains
essentially with the prosecution. However, once such burden is
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discharged, it is upon the accused, to discharge the burden of
explaining the fact is especially within his knowledge. If this were
not the position in law, it would pose an insurmountable task on
the prosecution to prove and establish the participation of the
accused persons and their exact roles in the commission of crime
happening in their house. Though it is trite that the onus probandi
is always on the prosecution but this principle cannot be stretched
to absurd limits. The principle is meant to facilitate the delivery of
justice and it cannot be permitted to be interpreted in an obtuse
manner so as to nullify its efficacy.
30. Per force we need refer to the provisions of Section 106 of
the Evidence Act:-
106. Burden of proving fact especially within knowledge.--when
any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.
Illustrations:
(1) When a person does an act with some intention other than
that which the character and circumstances of the act suggest, the
burden of proving that intention is upon him.
(2) A is charged with travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him.
31. In Shambu Nath Mehra Vs. State of Ajmer, AIR 1956 SC
404, Supreme Court observed as under:-
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"9. This lays down the general rule that in a criminal case the
burden of proof is on the prosecution and section 106 is certainly
not intended to relieve it of that duty. On the contrary, it is
designed to meet certain exceptional cases in which it would be
impossible, or at any rate disproportionately difficult, for the
prosecution to establish facts which are "especially" within the
knowledge of the accused and which he could prove without
difficulty or inconvenience. The word "especially" stresses that. It
means facts that are preeminently or exceptionally within his
knowledge. If the section were to be interpreted otherwise, it
would lead to the very startling conclusion that in a murder case
the burden lies on the accused to prove that he did not commit
the murder because who could know better than he whether he
did or did not."
32. In the State of West Bengal Vs. Mir Mohammad Omar,
reported in 2000 SCC (Crl.) 1516: Hon'ble Supreme court has held
that if fact is especially in the knowledge of any person, then
burden of proving that fact is upon him. It is impossible for the
prosecution to prove certain facts particularly within the
knowledge of the accused. Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt. But the section would apply to cases
where the prosecution has succeeded in proving facts from which
a reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his special
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knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference. Section
106 of the Evidence Act is designed to meet certain exceptional
cases, in which, it would be impossible for the prosecution to
establish certain facts which are particularly within the knowledge
of the accused.
33. Coming to the reference showing in the instant case Section
106 of the Evidence Act refers to the word "especially within the
knowledge of any person". Only such facts are required to be
disclosed which are in special knowledge of the accused. The dead
body has been found inside the house of the accused Johirul. He
could only have said as to how the dead body of his father-in-law
Abdul Sahid was found dead inside his house.
34. The accused/respondent Johirul in his statement recorded
under Section 313 Cr.P.C. has simply denied the incriminating
materials and circumstances which were put to him. He has even
denied that the dead body of his father-in-law was found inside his
house. Such a stead fast denial of every incriminating material
which have been well proved and established by the prosecution,
leads us to infer that the accused/respondent Johirul has no
explanation whatsoever to offer, and has therefore, a guilty mind.
35. It was further argued on behalf of the accused/respondents
that there are lots of contradictions in the evidence of the eye
witnesses (PW 1 & PW 5) as well as their statement recorded
under Section 164 Cr.P.C. for which learned Trial Court did not
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believe their evidence and acquitted the accused/respondents on
justified grounds.
It is also argued that according to PW 1 accused Mukter
assaulted Sahid on his head with a sel(spear) but PW 5 stated that
all the accused persons assaulted his father.
36. Per Contra, learned counsel for the appellant contended that
the contradictions as pointed out by learned counsel for the
respondents/accused are not material so as to rule out completely
their evidentiary value. Statement of PW 1 and PW 5 under
Sections 161 Cr.P.C.,164 Cr.P.C. and their evidence before the
Court are not contradictory rather consistent throughout. In such a
case, minor contradictions which are not material in nature are not
sufficient to wipe away their statements completely and rule out
its evidentiary value.
37. We have carefully considered the submissions made by
learned counsel for the appellant and learned counsel for the
accused/respondents and learned Public Prosecutor.
38. Regarding assault towards the deceased, according to PW 1,
Islam and Bahar assaulted Sahid at first with bare hands. Then
Bahar's mother Alfatun brought a dao and gave it to Bahar. Islam
took a 'sel'. Bahar and Islam struck Sahid with sel and dao. When
Suratun Nessa brought a rod and gave it to Johirul, he assaulted
his father-in-law Sahid.
39. Though PW 5 deposed in her examination-in-chief that
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accused Johirul, Bahar, Islam, Mukter, Samjid and Suraj assaulted
her father with rod, sabul, lenja and other weapons, but
subsequently in her cross-examination she specifically stated that
at first Bahar and Islam assaulted her father.
40. In her statement under Section 164 Cr.P.C. PW 5 stated that
accused Islam assaulted his father with crowbar, accused Samjid
inflicted injury with a rod and her husband Johirul dealt a blow
with spear. But while deposing before the Court she did not point
out specifically the role played by each of the accused.
41. While recording statement of PW 1 under Section 164 Cr.P.C.
he implicated Bahar and Samjid assaulting Sahid with hand and
firewood. As he tried to pull Sahid towards outside the house, Arif,
Mukter and Islam assaulted Sahid with daggar, rod, spear etc.
42. Hon'ble Supreme Court on this point has observed in the
case of State vs Saravanan reported in (2010) 4 SCC (Cri) 580
which reads as follows:
"While appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been of
such magnitude that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or improvements
on trivial matters without effecting the core of the prosecution
case should not be made a ground to reject the evidence in its
entirety."
43. In Bihari Nath Goswami v. Shiv Kumar Singh reported in
Page No.# 21/33
[(2004) SCC [cri] 1435] Hon'ble Supreme Court examined the
issue and held-
"9. Exaggerations per se do not render the evidence britle.
But it can be one of the factors to test the credibility of the
prosecution version, when the entire evidence is put in a crucible
for being tested on the touchstone of credibility. Mere marginal
variations in the statements cannot be dubbed as improvements
as the same may be elaborations of the statement made by the
witness earlier."
44. Above all, the presence of all the accused persons on the
spot cannot be denied. But there are some contradictions in the
evidence of PW 1 and 5 in a specific who are the perpetrators of
the crime. Charge is framed under Sections 147/148/149/302/323
IPC. There is no charge under Sections 302/149 IPC separately.
Now the question comes whether the accused persons can be
convicted under Sections 302/149 IPC without framing of charge
on specific sections of law.
45. Sub-Section (1) of Section 464 of the Cr.P.C., 1973 expressly
provides that no finding, sentence or order by a Court of
competent jurisdiction shall be deemed invalid merely on the
ground that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any misjoinder of
charges, unless in the opinion of the Court of appeal, confirmation
or revision, a failure of justice has in fact been occasioned thereby.
Sub-section (2) of the said section lays down the procedure that
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the Court of appeal, confirmation or revision has to follow in case
it is of the opinion that a failure of justice has in fact been
occasioned. The other section relevant for our purposes is Section
465 of the Code; and it lays down that no finding, sentence or
order passed by a Court of competent jurisdiction shall be
reversed or altered by a Court of appeal, confirmation or revision
on account of any error, omission or irregularity in the
proceedings, unless in the opinion of that Court, a failure of justice
has in fact been occasioned. It further provides, inter alia, that in
determining whether any error, omission of irregularity in any
proceeding under this Code has occasioned a failure of justice, the
Court shall have regard to the fact whether the objection could
and should have been raised at an earlier stage in the
proceedings.
46. Hon'ble Supreme Court in Willis (William) Slaney v. State of
Madhya Pradesh, 1956 CrilJ 291 elaborately discussed the
applicability of Sections 535 and 537 of the CrPC 1898, which
correspond respectively to Section 464 and 465 of the Code, and
held that in judging a question of prejudice, as of guilt, courts
must act with a broad vision and look to the substance and not to
technicalities, and their main concern should be to see whether
the accused had a fair trial, whether he knew that he was being
tried for, whether the main facts sought to be established against
him were explained to him fairly and clearly and whether he was
given a full and fair chance to defend himself.
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47. Viewed in the context of the above observations of the
Hon'ble Supreme Court we are unable to hold that the accused
persons were in any way prejudiced due to the errors and
omissions in the charges. Apart from the fact that this point was
not agitated in the Court below, from the fact that the material
prosecution witnesses (who narrated the entire incident) were
cross examined at length from all possible angels and the
suggestions that were put forward to the eye witnesses and we
are fully satisfied that the accused persons were not in any way
prejudiced in their defence.
48. The question as to what is required to be proved against a
person who is alleged to be a member of an unlawful assembly
came up for consideration before a four-judge Bench of Hon'ble
Supreme Court in Masalti v. State of U.P., 1964(8) SCR 133 and it
answered the same with the following words:
49. "While determining this question, it becomes relevant to
consider whether the assembly consisted of more persons who
were merely passive witnesses and had joined the assembly as a
matter of idle curiosity without intending to entertain the
common object of the assembly. It is in that context that the
observations made by this Court in the case of Baladin & Others
Vs. State of U.P. [AIR 1956 SC 181] assume significance; otherwise,
in law, it would not be correct to say that before a person is held
to be a member of an unlawful assembly, it must be shown that
he had committed some illegal overt act or had been guilty of
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some illegal omission in pursuance of the common object of the
assembly. In fact, Section 149 makes it clear that if an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be committed
in prosecution of that object, every persons who, at the time of
the committing of that offence, is a member of the same
assembly, is guilty of that offence; and that emphatically brings
out the principle that the punishment prescribed by Section 149 is
in a sense vicarious and does not always proceed on the basis that
the offence has been actually committed by every member of the
unlawful assembly."
50. The same principles were enunciated by Hon'ble Supreme
Court in Lalji v. State of U.P., 1989 CriLJ850 wherein it said:
51. "The two essentials of the section are the commission of an
offence by any member of an unlawful assembly and that such
offence must have been committed in prosecution of the common
object of that assembly or must be such as the members of that
assembly knew to be likely to be committed. Not every person is
necessarily guilty but only those who share in the common object.
The common object of the assembly must be one of the five
objects mentioned in Section 141 I.P.C. Common object of the
unlawful assembly can be gathered from the nature of the
assembly, arms used by them and the behaviour of the assembly
at or before scense of occurrence. It is an inference to be deduced
Page No.# 25/33
from the facts and circumstances of each case.
Section 149 makes every member of an unlawful assembly
at the time of committing of the offence guilty of that offence.
Thus this section created a specific and distinct offence. In other
words, it created a constructive or vicarious liability of the
members of the unlawful assembly for the unlawful acts
committed pursuant to the common object by any other member
of that assembly. However, the vicarious liability of the members
of the unlawful assembly extends only to the acts done in
pursuance of the common object of the unlawful assembly, or to
such offences as the members of the unlawful assembly knew to
be likely to be committed in prosecution of that object.
Once the case of a person falls within the ingredients of the
section the question that he did nothing with his own hands
would be immaterial. He cannot put forward the defence that he
did not with his own hand commit the offence committed in
prosecution of the common object of the unlawful assembly or
such as the members of the assembly knew to be likely to be
committed in prosecution of that object. Everyone must be taken
to have intended the probable and natural results of the
combination of the acts in which he joined. It is not necessary that
all the persons forming an unlawful assembly must do some overt
act. When the accused persons assembled together, armed with
lathis, and were parties to the assault on the complainant party,
the prosecution is not obliged to prove which specific overt act
Page No.# 26/33
was done by which of the accused. This section makes a member
of the unlawful assembly responsible as a principal for the acts of
each, and all, merely because he is a member of an unlawful
assembly. While overt act and active participation may indicate
common intention of the person perpetrating the crime, the mere
presence in the unlawful assembly may fasten vicariously criminal
liability under Section 149. It must be noted that the basis of the
constructive guilt under Section 149 is mere membership of the
unlawful assembly, with the requisite common object or
knowledge."
52. From the above judgments of Hon'ble Apex Court, it is
evident that to ascertain whether a particular person shared the
common object of the unlawful assembly it is not essential to
prove that he committed some illegal overt act or had been guilty
of some illegal omission in pursuance of the common object. Once
it is demonstrated from all the facts and circumstances of a given
case that he shared the common object of the unlawful assembly
in furtherance of which some offence was committed - or he knew
was likely to be committed - by any other person, he would be
guilty of that offence. Undoubtedly, commission of an overt act by
such a person would be one of the tests to be proved that he
shared the common object, but it is not the sole test.
53. Coming now to the present case, on the day of incident, PW
1 (Nur Islam) accompanied the deceased Abdul Sahid to the house
of the accused Johirul Islam, who happens to be the son-in-law of
Page No.# 27/33
the deceased to resolve certain domestic problem which was going
on between him and his wife Sahena Begum, daughter of the
deceased (P.W.5). It is an admitted fact that the incident occurred
in the house of the accused Johirul. As per evidence of PW 1 when
he and the deceased Abdul Sahid reached in the house of Johirul,
accused Samjid Ali, Johirul and his maternal uncle were present.
Besides them Islam, Bahar, Mukter, Suraj Ali, Alfatun were also
present. Around 2:00 P.M., he and Sahid went to Johirul's house. A
meeting was held and they resolved the problem. Islam and Bahar
rebuked Sahid. When it was asked as to why Sahid was rebuked,
Islam and Bahar assaulted Sahid with barehands at first. Then
Bahar's mother Alfatun brought a dao and gave it to Bahar. Islam
took a sel. Bahar and Islam struck Sahid with sel and dao. PW 1
also stated that Suraj and Babul incited Islam and Bahar to assault
Sahid. Samjid also incited Bahar and Islam to assault Sahid. When
Suratun Nessa brought a rod and gave it to Johirul, he assaulted
his father-in-law Sahid.
54. PW 5 who is also an eye witness to the incident, supported
the fact of presence of all the accused persons on the spot.
According to PW 5 on the day of occurrence Johirul called his
father to his house. She told her father that Johirul and Bahar had
assaulted her. When her father asked them about that Islam held
her father by holding his collar and Islam and Samjid assaulted
him. Thereafter, Johirul, Bahar, Islam, Mukter, Samjid and Suraj
assaulted her father with rod, sabul, lenja and other weapons. It is
of course true that there are some contradictions in between their
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statements made in the Court and before the police during
investigation, but presence of accused persons on the spot cannot
be disputed, so the specific part played by each of the individual
accused cannot be counted for.
55. Learned Trial Court has acquitted the accused/respondents
on two grounds i.e. medical evidence and non-production of
General Diary Entry during trial and non-examination of the person
for whose information General Diary was recorded. We have
already discussed the post-mortem report and evidence of medical
officer, P.W. 6.
56. Now we shall deal with the argument in relation to FIR.
Learned counsel for the accused/respondents stressed on his
argument that the FIR was not lodged immediately after the
incident. Though PW 1 (Nur Islam) stated to be an eye witness of
the incident and he visited the police station to inform about the
incident to the police and returned to the place of occurrence with
the police, but he did not lodge any FIR before the police. PW 3
Abdul Mannan lodged the FIR. Learned counsel also stated that
the over writing in the date of the FIR is also noticed.
57. After going through the record, it reveals from the evidence
of PW 7 Thaneswar Chetia (I.O.) that one Mustafa Ahmed
informed the matter to the police and immediately at about 4:00
P.M. on 24.10.2008 police made a GD Entry being GD Entry No.
311 dated 24.10.2008 and he rushed to the place of incident. He
also informed the Magistrate. The inquest was done by Executive
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Magistrate Pulak Patgiri. On the same day Murajhar P.S. O.C.
received a written ejahar. The ejahar was registered and he was
entrusted to investigate the matter. The extract copy of the G.D.
Entry is not available in the record and the said Mustafa is also not
examined in the case.
58. The contention of the learned counsel for the accused/
respondent is that since the fact stated in the GD Entry No. 311
disclosed commission of cognizable offence, the written complaint
as made by PW 3 on 24.10.2008 at the Police Station is hit by
Section 162 of the Cr.P.C. and cannot be treated as FIR.
59. As we have already stated that one GD Entry was recorded
in the PS vide No. 311 dated 24.10.2008 but the extract copy of
the said GD Entry was not produced during trial and the said GD
Entry was not exhibited in the trial Court and it is also true that
the person on whose information the said GD Entry was recorded
was not examined in the case. The investigating agency after
registering the said GD Entry has started investigation. In course
of said investigation, the I.O. proceeded to the place of occurrence
on the day of incident and after reaching there he recorded the
statement of the available witnesses, prepared sketch map of the
place of occurrence and seized one dao, sabul and rod lying beside
the dead body of Abdul Sahid. The inquest of Abdul Sahid was
conducted in the house of accused Johirul and after that his dead
body was sent for post-mortem examination. As the G.D.E. vide
No. 311 dated 24.10.2008 is not available in the record but
Page No.# 30/33
according to PW 7 around 4:00 P.M. on 24.10.2008 one Mustafa
Ahmed informed him over phone that a cutting incident took place
at South Debasthan. Accordingly, he made a GD Entry vide No.
311 dated 24.10.2008. Apparently if this accessation is accepted
on its face value, clearly an offence under Section 324 IPC at that
time was made out and such offence is a cognizable offence. The
allegations recorded in the general diary certainly gives rise to
suspicion that a cognizable offence may have been committed
which officer-in-charge of the P.S. was empowered to investigate.
60. For the reasons aforesaid, we are in complete agreement
with the statement of learned counsel for the accused/
respondents that Exhibit 1 (FIR) cannot be treated as FIR in the
case and the opinion recorded in the G.D.E. vide No. 311 dated
24.10.2008 shall be treated as FIR because it discloses the
commission of cognizable offence. The subsequent FIR (Exhibit1)
made by PW 3 may in that event be treated as statement under
Section 161 Cr.P.C. and could be used only for the purpose of
contradiction of the evidence of PW 3 only.
61. As the extract copy of G.D.E. No. 311 dated 24.10.2008 is
not available in the record, so we cannot say that name of any
accused was mentioned in the said GD Entry. As per evidence of
PW 7, Mustafa Ahmed informed him over phone that a cutting
incident took place at South Debasthan. It is not evident from the
evidence of PW 7 whether name of any of the accused persons
were mentioned in GD Entry No. 311 dated 24.10.2008 but that by
Page No.# 31/33
itself does not go deep to the root of the prosecution case as
regards the participation of accused/respondents in the crime. It
appears from the record that on the same day of incident PW 3
lodged the FIR in the police station in the evening hour by
showing the names of the accused involved in the incident.
Moreover, clinching and trustworthy evidence collected in the case
which we have already discussed in the earlier part of our
judgment cannot be thrown out on the spacious plea put forward
by the learned counsel for the accused/respondents that the first
informant Mustafa was not examined in the case.
62. It is a settled position of law that FIR is not meant to be
encyclopaedic. While considering the effect of some omission in
the FIR on the part of the informant, the Court cannot fail to take
into consideration the probable physical and mental condition of
the first informant. It may be noted that while the PW 1 came to
Police Station immediately after the occurrence, he had been on
the severe trauma at the time of giving the information about the
incident before the police and it was perhaps not in his mind to
lodge the FIR. He had intention to take the police to the spot as
early as possible to save the life of the deceased. The fact that the
names of the accused/ respondents herein this case are not
mentioned in the GD Entry cannot be taken into consideration as
no rule of law stipulates that an accused whose names are not
mentioned in the FIR are entitled to an acquittal.
63. In view of the available oral evidence as well as medical
Page No.# 32/33
evidence, we feel that despite some inconsistencies in the
prosecution version, the prosecution version is highly credible and
if relied upon, would not defeat the ends of justice and this Court
holds the accused Baharuddin, Jahirul Islam, Islam Uddin, Mukhtar
Uddin and Suraj Ali guilty for the offence u/s 147/148/302/149
IPC.
64. In the result, this Criminal Appeal is partly allowed and the
judgment of acquittal passed by the learned Additional Sessions
Judge, Hojai in Sessions Case No. 69 (N) 2011 is set aside in so
far as the accused Baharuddin, Johirul Islam, Islamuddin,
Mukteruddin and Suraj Ali are concerned. The Judgment of
acquittal as regards other accused is confirmed.
65. Accordingly, Baharuddin, Johirul Islam, Islamuddin,
Mukteruddin and Suraj Ali (respondent Nos. 8,5,7,9 and 10) are
directed to surrender before the Court of learned Additional
Sessions Judge, Hojai. On their appearance before the Court, they
shall be taken into custody. Then, learned Additional Sessions
Judge, will record their statements and evidence for the purpose
of sentence hearing by this Court.
It is made clear that if the accused persons/convicts fail to
appear before the Trial Court, the Trial Court is at liberty to issue
W/A to procure their attendance.
66. The report of learned Additional Sessions Judge, Hojai will
be placed before us for the purpose of awarding appropriate
Page No.# 33/33
sentence.
67. The matter be listed on receipt of the record containing
report of learned Additional Sessions Judge, Hojai for passing
appropriate sentence of the convicted respondents.
68. Return the LCR.
JUDGE JUDGE
Comparing Assistant
