Page No.# 1/24 vs The State Of Assam And Anr
2021 Latest Caselaw 2068 Gua

                                                        Page No.# 1/24

GAHC010000342019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : Crl.A./66/2019


         AFTAB UDDIN @ AFTAB ALI AND ANR
         S/O LATE AKIL ALI,
         VILLAGE BARJARUMI,
         PS LANKA, DIST HOJAI, ASSAM

         2: INTAZ ALI
          S/O LATE AKIL ALI

         VILLAGE BARJARUMI

         PS LANKA
         DIST HOJAI
         ASSAM


         VERSUS


         THE STATE OF ASSAM AND ANR
         REPRESENTED BY PP ASSAM

         2:ABDUL HAQUE
          S/O LATE AZIZUR RAHMAN

         VILLAGE BARJARUMI

         PO PHULTALI
         PS LANKA
         DIST HOJAI
         782446
         ASSAM
                                                                          Page No.# 2/24


Advocate for the Petitioner    : MR H R A CHOUDHURY

Advocate for the Respondent : MS. B BHUYAN, ADDL. PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER (CAV)

Date : 04-09-2021

(Suman Shyam, J)

Heard Mr. A. Ahmed, learned counsel appearing for the appellants. We have

also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for

the State/respondent No.1 and Mr. B. Haldar, learned counsel appearing for the

informant/respondent No.2.

2. This appeal has been preferred by the two appellants viz., Aftab Uddin and

Intaz Ali assailing the judgment and order dated 28.11.2018 passed by the court of

Additional District & Sessions Judge, Hojai in connection with Sessions Case

No.14(N)/2011 whereby, both the appellants have been convicted under Sections

120-B/302 of the Indian Penal Code (IPC) for committing the murder of Md. Abdul

Latif and sentenced to undergo rigorous imprisonment for two years each for

committing the offence under Section 120-B of the IPC and to suffer rigorous

imprisonment for life for committing the offence under Section 302 of the IPC and also

to pay fine of Rs.10,000/- each, in default of which, to undergo simple imprisonment Page No.# 3/24

for 3 (three) months each.

3. The prosecution case, in brief, is that on 12.07.2007, at around 5.30 p.m. the

appellant No.2, Intaz Ali came to the house of the deceased and asked him to

accompany him to the Kaki No.3 Moinapur Market. Accordingly, the victim,

accompanied by Intaz Ali, went to the market and while he was moving around in

the market, the accused persons had attacked the deceased Md. Abdul Latif in front

of the shop of Niranjan Paul with sharp weapons such as daggers and daos and

caused grievous injuries upon the victim and left him unconscious on the road. The

victim was then shifted to the hospital for treatment but later on, he had succumbed

to his injuries.

4. On 14.07.2007 Md. Abdul Haque i.e. the brother of the victim had lodged an

ejahar with the Officer-in-Charge, Kaki Police Station reporting the incident. In the

F.I.R. 10 accused persons viz., 1) Md. Intaz Ali, 2) Md. Aftab Uddin, 3) Md. Samsul

Hoque, 4) Md. Mamtaz Ali, 5) Md. Jaser Ali, 6) Md. Terab Ali, 7) Md. Jakir Hussain, 8)

Md. Ajai Miah, 9) Md. Akel Ali and 10) Md. Azim Ali had been named. Upon receipt of

the ejahar, Kaki P.S. Case No.58/2007 was registered under Sections 147/148/149/120-

B/302 of the I.P.C. and the matter was entrusted to S.I. Dilip Kumar Bora for carrying

out investigation in the case. Upon completion of investigation, the I.O. had filed

charge-sheet against 8 (eight) accused persons under Sections 147/148/149/120-

B/302 of the I.P.C. whereas, Final Report was submitted against two accused Md.

Momtaz Ali and Md. Akel Ali. Based on the charge-sheet, charges were framed

against all the 8(eight) accused persons including the present appellants, i.e. 1) Md.

Page No.# 4/24

Intaz Ali, 2) Md. Aftab Uddin, 3) Md. Samsul Hoque, 4) Md. Jaser Ali, 5) Md. Terab Ali,

6) Md. Jakir Hussain, 7) Md. Ajai Miah, and 8) Md. Azim Ali. Since the accused persons

had pleaded innocence and claimed to be tried, the matter then went up for trial.

5. In order to bring home the charges framed against the accused persons, the

prosecution side had examined as many as 16 witnesses including the I.O. as PW-15

and the doctor who had conducted the autopsy as PW-16. PW-6, Sri Narahari Nath,

was examined as an eye-witness to the occurrence. The defence side did not

adduce any evidence. Upon appreciation of the evidence adduced on record, the

learned trial court was of the view that the prosecution had succeeded in

establishing the charges brought against the two appellants Aftab Uddin and Intaz Ali

beyond reasonable doubt and accordingly, convicted them under Sections 120-

B/302 of the IPC and sentenced them as aforesaid. However, the other six accused

persons i.e. 1) Md. Samsul Haque, 2) Md. Jafar Ali, 3) Md. Terab Ali, 4) Md. Jakir

Hussain, 5) Md. Azad Hussain and 6) Md. Tazim Ali were acquitted by holding that the

charges brought against them could not be proved by the prosecution beyond

reasonable doubt.

6. Mr. Ahmed, learned counsel for the appellants has assailed the impugned

judgment and order dated 28.11.2018 primarily on three counts. Firstly, that there are

serious omissions and improvements in the testimony of witnesses bringing on record

material contradictions in their evidence. The prosecution witnesses, more particularly

PWs-1, 5, 6 and 11 were not at all reliable and therefore, their evidence could not

have been relied upon by the learned court below so as to convict the appellants.

Page No.# 5/24

Secondly, although the allegation brought against all the accused persons were

similar in nature, yet, based on the same materials 6(six) out of the 8(eight) accused

persons have been acquitted by the learned trial court while convicting the two

appellants thereby acting in a wholly arbitrary and illegal manner. Thirdly, that the

learned trial court has erred in law in placing reliance on the oral dying declaration of

the deceased which was not proved in accordance with law. In support of his

aforesaid arguments, Mr. Ahmed has relied on the following decisions :-

(1) (2010)13 SCC 657 [Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of Maharashtra.

(2) (2016)12 SCC 389 [Ram Laxman Vs. State of Rajasthan]

(3) 2021 (1) GLT 89 [Robial Hoque Vs. State of Assam & another]

7. Refuting the above submissions, Ms. B. Bhuyan, learned Addl. P.P., Assam,

appearing for the respondent No.1, has argued that while it may be correct that

there are some defects and lapses in the investigation and some discrepancies in the

testimony of the witnesses but the same cannot be the sole ground for acquittal of

the accused persons by ignoring the totality of evidence brought on record which

was sufficient to establish the charges beyond reasonable doubt. Supporting the

impugned judgment and order dated 28.11.2018 Ms. Bhuyan has argued that the

learned Sessions Judge has meticulously gone through the evidence and on proper

appreciation of the same, has convicted the two appellants by a reasoned order.

Under the circumstances, submits Ms. Bhuyan, no case is made out for interference

with the impugned judgment and order dated 28.11.2018.

Page No.# 6/24

8. Mr. Haldar has supported the arguments advanced by the learned Addl. P.P.

and has further argued that minor contradictions in the testimony of some witnesses

was but natural and therefore, it cannot be a ground to set aside the conviction of

the appellants, if the entire evidence read in conjunction establishes the charges

brought against the appellants. In support of his above argument Mr. Haldar has

placed reliance on the decision of the Hon'ble Supreme Court in the case of Ramesh

Harijan vs. State of Uttar Pradesh reported in (2012)5 SCC 777.

9. We have considered the submissions advanced by the learned counsel for

both the parties and have also gone through the materials available on record.

10. PW-1, Md. Abdul Hoque is the informant in this case and had lodged the

ejahar before the Kaki Police Station on 14.07.2007 based on which, Kaki P.S. Case

No.58/2007 was registered. In his deposition, PW-1 has stated that on the date of the

incident he had gone to Moina Pathar Bazar but on hearing a hue and cry in the

Bazar, he went to the place of occurrence and saw that the accused persons viz.

Intaz, Aftab, Samsul, Jakir, Jour and Azai had felled his brother Latif on the ground in

front of the tea stall of Niranjan Paul and they were assaulting him with "dao" and

"dagger". The other accused persons viz., Momtaz, Azimddin, Terab and Aquil were

standing nearby carrying daos and daggers in their hands. When he raised alarm,

members of his family had arrived at the spot and then the accused persons fled the

scene. He then rang up Kaki Police Station from a PCO and took Latif in a vehicle to

Lanka Police Station and then to Lanka Hospital. After that, Latif was taken to a

hospital in Hojai and then to the Nagaon Civil Hospital wherefrom, he was taken to Page No.# 7/24

Guwahati Medical College & Hospital (GMCH) where he died. This witness has

confirmed that he had lodged the ejahar Ext-2. In his cross-examination, PW-1 has

stated that while making the phone call to the Police Station from the PCO he did not

mention the names of the accused persons. This witness has also stated that at the

time of the incident, the shop of Niranjan Paul was open and around 30/40 villagers

had gathered there but he did not know their names.

11. PW-2, Md. Nazimuddin and PW-3 Md. Ainuddin are the two witnesses who did

not see the occurrence but reached the place of occurrence after getting the

information and saw that Latif was lying in an injured condition. These witnesses had

taken the victim to the hospital. However, both these witnesses were declared as

hostile witnesses.

12. PW-4, Md. Fazar Ali is another witness who had arrived at the place of

occurrence after he had heard a hue and cry and saw Latif lying in front of

Promode's shop. He had seen cut injuries in the hand and head of Latif. PW-4 has

deposed that he had lifted Latif and brought him on the road in front of Niranjan's

shop. When he asked him, Latif had told him that Aftab had hacked him. Thereafter,

he left the place. PW-4 was also declared as a hostile witness.

13. PW-5, Md. Sarafat Ali was apparently examined as an eye-witness to the

occurrence. PW-5 has deposed that at the time of the incident he was collecting

credit from the market when he heard hue and cry. Coming near, he saw that Latif

was lying on the ground. PW-5 has stated that Latif had asked him to save him saying

that Aftab and others had assaulted him. He then lifted Latif with the aid of Fazar Ali Page No.# 8/24

(PW-4) and took the injured for treatment. In his cross-examination, PW-5 has stated

that Latif himself had told him that Aftab and others had assaulted him. If the

aforesaid statement of PW-5 is accepted then it is apparent that there is an oral dying

declaration of the victim. However, surprisingly enough the PW-5, did not mention

about the oral dying declaration to the I.O. while recording his statement under

Section 161 Cr.P.C. Moreover, from the testimony of PW-5 it is also apparent that he

did not actually see the occurrence but had reached the place after the incident

and only saw injured Latif lying there. Therefore, it is apparent that PW-5 is not an eye-

witness to the occurrence.

14. PW-6, Sri Narahari Nath was also examined as an eye-witness. This witness has

deposed that on the day of the incident, at about 7.00 p.m., the victim Latif came to

his shop and asked him to give him "pan & supari"(betel nut) saying that he was

home bound. As he was about to give betel nut to Latif, Aftab had dealt cut blow on

Latif's shoulder with a dao. PW-6 has deposed that Aftab had dealt two cut blows.

Witnessing that, he asked Latif to get up, whereupon, he got up but fell down again

near Promode Nath's tea stall. Then PW-6 had scolded Aftab. According to PW-6,

the handle of the "dao" came out and remained on the spot. Aftab had dealt

another cut blow on Latif's hand near Promode's shop and he was smeared all over

with blood. Then he called two persons viz. Kutu (Tutu) and Lambu and sent Latif to

the doctor's house along with them. PW-6 has stated that as he was shutting his shop

Aftab appeared again with a dao and threatened him. When he also threatened

Aftab, both of them left. On the following morning he had heard that Aftab and his

party had hacked Latif again and Latif died under treatment at Guwahati.

Page No.# 9/24

15. From a close scrutiny of the testimony of PW-6 we find that this witness has

categorically deposed that Aftab and his associates had hacked Latif. He has also

stated that Aftab and his associates had hacked Latif again after the incident that

took place before his shop and he came to know about it on the following morning.

Therefore, PW-6 has only seen the first incident but is evidently not an eye-witness to

the second incident where the deceased had received fatal injuries. Moreover, in his

cross-examination, this witness has deposed that it was dark in the night and he was

in the shop by lighting a lamp. This witness has, however, stated that he had

witnessed Aftab dealing another cut blow on Latif near Promode Nath's shop.

16. PW-7, Sri Angad Rajbanshi was serving as an ASI of Police posted at Guwahati

Medical College Hospital Outpost and he had held inquest on the dead body of

Abdul Latif and submitted inquest report Ext-4. This witness has stated that after

conducting the inquest he had sent the dead body for post-mortem examination.

17. PW-8, Sri Sadhan Barma was known to the deceased and he has stated that

on the day of the incident, he went to his shop to collect money and on coming

back, he found a person Abdul Latif lying in a pool of blood at a tea stall belonging

to Promode Nath (Kumud Nath). PW-8 has also stated that when the injured Latif was

lying at the tea stall, he was shouting that Aftab had cut him. This witness had made

the same statement before the police and had remained firm during his cross-

examination.

18. PW-9, Sri Ratan Chandra Sutradhar is another shop owner in that market and

he has deposed before the Court that on the day of the incident, at around 7.30 Page No.# 10/24

p.m., he had closed down his tailoring shop with the intent to go home and after he

had crossed about 40 fts. something had happened in the shop of Narahari Nath.

Then he asked Narahari Nath as to what had happened. Then someone told him that

Latif had been cut by Aftab. It appears that PW-9 was talking about the first incident

which took place before the shop of PW-6 when Aftab had assaulted the deceased.

19. PW-10, Musstt. Badarun Nessa is the wife of the deceased. She has deposed

that some people from the market came and told her that Intaz, Jafur, Samsul

Haque, Ajai, Tazir, Jakir and Terab had killed her husband. She then went and saw

her husband lying near a tea stall in the market. When she asked her husband, he

told her that the accused persons had attacked him. PW-10 has also deposed that

the left hand of her husband was cut and severed. She also saw injury on his right

hand.

20. PW-11 (who was cited as PW-12), Md. Abdul Kadir is actually an inquest

witness. His statement was not recorded by the police under Section 161 Cr.P.C.

However, while deposing before the Court, PW-11 has stated that on the day of

occurrence he had seen Latif going with Intaz. Aftab Uddin was following them. He

had heard a hue and cry in the market. After a while, he saw Aftab, Intaz, Jafur,

Samsul Haque, Jakir, Ajai, Tazim and Terab assaulting Latif. He saw Aftab attacking

Latif by means of dao, Intaz attacking him by means of dagger, Jafur attacking him

by means of dao, Samsul attacking him by means of dagger, Jakir attacking him by

means of dao, Ajai attacking him by means of dao, Tazim attacking him by means of

dao and Terab attacking him by means of dao. PW-11 has also stated that the Page No.# 11/24

incident took place in front of the tea stall of Niranjan. He found Abdul Haque,

Ainuddin, Nazim Uddin and others at that place. Those persons took Latif to Lanka

Government Hospital, then to HAMM Hospital, Hojai, then to Nagaon Civil Hospital

and finally to GMCH. Latif died on the way. PW-11 has also stated that he had seen

injuries on the hand and back side of the head of Latif. During his cross-examination,

this witness has stated that the incident took place in front of the tea stall of PW-6. He

did not see the incident. He had gone to the market after two hours of seeing Latif

going with Intaz.

21. From the evidence adduced by PW-11 it can be seen that this witness had

initially claimed to have seen the occurrence and had given a vivid description as to

which of the accused persons had attacked the deceased and with what weapon.

However, during his cross-examination he has denied of having seen the occurrence.

Besides, the statement of this witness was not recorded by the police under Section

161 Cr.P.C. and therefore, his version was recorded for the first time before the court.

The testimony of this witness is also full of material contradictions. As such, the

testimony of this witness is not at all reliable.

22. Sri Ananta Narayan Choudhury i.e. the I.O. in this case was examined as PW-

15. The I.O. has confirmed that he had completed the investigation in this case,

arrested the accused persons and forwarded them to the Jail custody. The I.O. has

deposed that he had seized a "dao" from the accused and sent the same for FSL

examination and also collected the FSL report. He also got the statement of the

witness Abdul Haque recorded in the court of SDJM, Hojai under Section 164 of the Page No.# 12/24

Cr.P.C. Finally, on completion of the investigation, he had submitted charge-sheet

(Ext-9) against the accused persons.

23. In his cross-examination, the I.O. has confirmed that PW-4 Fazar Ali alias Lambu

did not state before him that upon asking, Latif had stated that Aftab had assaulted

him; that PW-5 Sarafat Ali did not name Fazar in his statement; that PW-6 Narahari

Nath did not state before the police that he had heard on the next day that Aftab

and his party had again assaulted Latif; that PW-6 did not state in his police

statement that he told Tutumia and Lambu to take Latif to doctor; that PW-6 did not

state before the police that when Latif fell down near the shop of Promode, Aftab

again assaulted him; that Aftab was carrying a dao in his hand and assaulted Latif in

the shoulder by the dao and Latif fell down and walked to the shop of Promode

Nath. The I.O. (PW-15) has further deposed that the PW-6 did not implicate Aftab in

his police statement and he also did not state that Aftab had assaulted Latif on his

shoulder by a dao.

24. PW-15 had also confirmed that the statement of Abdul Kadir (PW-11) was not

recorded by the police and there is nothing in the Case Diary to show that PW-11

(PW-12) had made any statement before the police stating that he had seen the

occurrence or the assault upon Latif. PW-15 has also stated that the FSL report gave a

negative finding as regards presence of blood in the dao.

25. PW-13 (mentioned as PW-12), Dr. Monalisha Choudhury has deposed that on

22.08.2008, she had received a completely rusted dao, without handle, suspected to

contain stains of human blood and on testing, it gave negative result for test of Page No.# 13/24

blood.

26. PW-16 (mentioned as PW-17), Dr. Dipak Kumar Das, was the Medical Officer

on duty at the Guwahati Medical College Hospital (OPD) on 14.07.2007 and had

conducted autopsy on the dead body of deceased Abdul Latif. As per the post-

mortem report, following injuries were found in the dead body:-

"1. One chop wound present over upper part of neck started from front part of left ear extended upto 12cm back of ear (left). Size 16 x 3 x 1.5cm cutting skin muscles nerves and vessels.

2. One chop wound present over upper part of face left side started from 1cm lateral to outer conthus of left eye towards posteriously- horizontally. Size 7 x 1.5 x 1cm. cutting skin muscle nerves and vessels.

3. One chop wound present over right side of face 3cm in front of right tragus longiredantly extends towards skull. Size 10 x 3cm x bone deep.

4. One chop would present over right parieto-occipital region horizontally 4cm above upper border of right ear. Size 10 x 3cm x bone deep.

5. One chop wound present over right parietal region horizontally 7cm above upper border of right ear. Size 7 x 1cm x bone deep.

6. One incised wound present over upper lip. Size 4 x 1 x 0.5 cm.

7. One chop wound present over back of lower abdomen 14cm right to midline. Size 4 x 1 x 1cm.

8. One chop wound present over left elbow postereously size 4 x 1 x 0.5cm.

9. One chop wound present over mid yard of fore arm of postereo-lateral aspect. Size 8 x 4 x 1cm.

10. One chop wound on posterior aspect of right forearm mid third size 5 x 2 x 1cm.

Page No.# 14/24

11. One chop wound present on lower 1/3 of left forearm and hand (part of lower forearm and hand missing) only little finger of left hand and lateral aspect of the hand present. Cutting both bone of forearm and bones of hand.

12. One chop wound present on lower 1/3 of right forearm. Cutting skin muscle and both bones of forearm. Only skin and small part of muscle attached to the deceased. Size 11 x 3 x 3cm.

13. One chop wound present on right knee. Size 10 x 4 x 1cm.

14. One chop wound present on upper part of leg lateral aspect. Size 9 x 2 x 2cm.

15. One chop wound present on left knee. Size 7 x 1 x 1cm.

16. One abrasion present over left thigh mid third. Size 10 x 5cm."

27. The doctor (PW-16) has opined that the cause of death was due to shock and

haemorrhage as a result of injuries sustained. The injuries were ante-mortem, caused

by heavy sharp cutting weapon and were homicidal in nature.

28. PW14, Sri Anadi Das was working as the Officer-in-Charge, Kaki Police Station

on 12.07.2007. He had received the information about the occurrence and made

G.D. Entry No.183 dated 12.07.2007. PW-14 has stated that after making the G.D. Entry

he had sent S.I. Dilip Kumar Bora to the place of occurrence who had conducted

investigation in the case.

29. From a scrutiny of the evidence available on record, we find that the victim

was taken to the Kaki Bazar in the evening hours on the day of the incident by a

person called Intaz i.e. appellant No.2. After reaching the market, the victim was

attacked by sharp weapons as a result of which, he had sustained multiple grievous

injuries on his body, ultimately leading to his death. The medical evidence also clearly Page No.# 15/24

establishes the fact that the deceased had died a homicidal death. However, the

question that would arise in the appeal is as to whether, the evidence adduced by

the prosecution side proves the chain of circumstances so as to establish the charge

brought against both the appellants beyond reasonable doubt.

30. From a careful examination of the testimonials of PWs-1, 5, 6 & 11, we find that

there are serious contradictions in their testimonies, which may be briefly noticed as

follows :-

(a) PW-1 has deposed that on hearing the hue and cry in the Bazar he went

to the place of occurrence and saw the accused persons Intaz, Aftab, Samsul,

Jakir, Johur and Ajad had felled his brother Latif on the ground in front of the

tea stall of Niranjan Paul and were assaulting him with dao and dagger.

However, in the ejahar, PW-1 has mentioned that on hearing the hue and cry

of persons from the market, he along with his companions, had gone to the

market and raised an alarm. At that, the accused persons ran away from the

market. If that be so, it is evident that the PW-1 had reached the market after

the occurrence and he did not see the incident as deposed before the court.

The aforesaid contradiction assumes great significance in view of the fact that

the F.I.R. in this case was evidently lodged on the third day of the incident and

there is no proper explanation for the delay in lodging the F.I.R.

(b) In his deposition, PW-5 had stated that he had heard hue and cry and

on going near, he had seen that Latif was lying on the ground. At that time Latif

had asked him to save him saying that Aftab and others had assaulted him.

Page No.# 16/24

However, in his statement recorded by the police under Section 161 Cr.P.C.

this witness did not say so.

(c) PW-6, Narahari Nath, had deposed that he had seen Aftab had dealt a

cut blow on Latif's shoulder with a dao but in his statement recorded under

Section 161 Cr.P.C. he had stated that he could not recognise the person who

had committed the incident due to darkness but had heard that he is the son

of Aquilur of their village.

(d) In so far as the testimony of PW-11 is concerned, the same having been

made before the court for the first time would not have any credibility.

31. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others (supra) the

Supreme Court has observed that in case, the complainant in the F.I.R. or the witness

in his statement under Section 161 Cr.P.C. has not disclosed certain facts but meets

the prosecution case for the first time before the court, such version lacked credence

and was liable to be discarded. In view of the above, evidence adduced by PW-11 is

liable to be discarded.

32. We have noticed that the contradictions, as noticed above, have also been

brought on record by the I.O. during his cross-examination. Most significant of the

contradictions in the deposition of the prosecution witnesses pertains to the testimony

of PWs-5 and 6 which have been discussed in some details herein before. In our

opinion, those are material contradictions and therefore, would certainly cause a

dent in the prosecution case. It is to be noted herein that the witnesses have

indicated that the incident took place before the tea stall of Niranjan Paul who was Page No.# 17/24

present there. If that be so, Niranjan Paul or his employees would be the natural eye-

witnesses to the occurrence. However, neither Niranjan Paul nor any person present in

his tea stall at the time of the occurrence had been examined as a witness and the

reason for not doing so is also not discernible from the record.

33. The post-mortem report goes to show that there are as many as 16 incised

wounds on the dead body. PW-6 had only mentioned about two cut blows inflicted

by Aftab upon Latif while the latter had come to his shop for betel nut. Therefore, it is

evident that the PW-6 had not seen the entire incident. It appears from the testimony

of PWs-6 and 8 and the sketch map prepared by the I.O. that on the day of the

incident, the victim Latif was assaulted at two different places - first in the pan shop of

PW-6 and thereafter, in front of the tea stall of Promode Nath. In other words, the

deceased was attacked by the assailants at two different locations inside the Kaki

market. However, the said fact has neither been mentioned in the F.I.R. nor has the

I.O. recorded so in the Case Diary. As a matter of fact, there is no evidence on record

to show that the victim was attacked twice by the assailants. Be that as it may, in

view of the nature of injuries mentioned in the post-mortem report Ext-7 and the

testimony of PW-6, it is evident that the victim had received multiple fatal injuries in

the second attack which apparently took place in front of the tea stall of Promode

Nath.

34. From the testimony of PWs-6 and 8 it also appears that after receiving the first

round of assault in the shop of PW-6, the victim had moved and fell down near the

tea stall of Promode Nath where he was attacked again by the assailants. However, Page No.# 18/24

Promode Nath has also not been examined as a witness by the prosecution side.

35. Although PW-10 has deposed that she went to the market and when she

asked her husband he told her that the accused persons had attacked him, yet, this

witness has not stated so before the I.O. while recording her statement.

36. From the above, it can be seen that there are improvements, omissions and

embellishment in the testimonies of the prosecution witnesses. However, it is to be

borne in mind that merely because there are some discrepancies, exaggeration or

embellishments in the testimony of the witnesses, their evidence need not be

discarded altogether. In the case of Leela Ram vs. State of Haryana reported in

(1999) 9 SCC 525 the Supreme Court has observed that one hardly comes across a

witness whose evidence does not contain some exaggeration or embellishment but

the court can sift the shaft from the grain and find the truth from the testimony of the

witnesses.

37. In Subal Ghorai vs. State of W.B. reported in (2013) 4 SCC 607 it has been

observed that sometimes witnesses do exaggerate but the evidence of such

witnesses need not be discarded on account of embellishment if it is corroborated on

materials established by other evidence on record.

38. In the present case, as noted above, as many as four witnesses viz., PWs-4, 5, 8

and 10 have deposed before the Court that the deceased had told them that it was

Aftab i.e. the appellant No.1 who had assaulted him. PW-4 was declared as a hostile

witness. However, in the case of Himangshu vs. State (NCT of Delhi) reported in (2011)

2 SCC 36 as well as Raja & others vs. State of Karnataka reported in (2016) 10 SCC 506 Page No.# 19/24

it has been held that evidence of hostile witness remains admissible and is open for a

court to rely on the dependable part thereof as found acceptable and duly

corroborated by other reliable evidence available on record. The version of PW-4 to

the effect that the deceased has told him that Aftab has assaulted him finds due

corroboration from the testimony of PWs-5 and 10 who have said so in one voice. PW-

8 is an independent witness and he has also categorically deposed that he had

heard injured Latif shouting that Aftab had cut him. The evidence of PW-6 also goes

to show that Aftab was the assailant of Latif. Six prosecution witnesses have

implicated Aftab in the murder of Latif. There is nothing on record to show that these

witnesses had any enmity with Aftab. Therefore, although there are some omissions,

embellishments and contradictions in the testimony of these witnesses, as noticed

herein above, yet, we do not find any compelling reason to discard the evidence

adduced by these witnesses, in so far as it relates to the complicity of Aftab, since

their evidence on the above point finds corroboration from the evidence of one

another as well as the other evidence available on record.

39. Dealing with the question as to the manner in which a dying declaration was

to be scrutinised by the court, the Supreme Court has made the following

observations in the case of Vijay Pal vs. State (Government of NCT of Delhi) reported

in (2015)4 SCC 749 :-

"17. The submission of the learned counsel for the appellant is that the oral dying declaration lacks intrinsic truth and it does not deserve acceptance. At this juncture we think it appropriate to refer to certain authorities how an oral dying declaration is to be scrutinized.

Page No.# 20/24

18. In the case of Laxman v. State of Maharashtra , the Constitution Bench has held thus:

"The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."

Page No.# 21/24

19. The aforesaid judgment makes it absolutely clear that the dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice, provided the communication is positive and definite. There cannot be any cavil over the proposition that a dying declaration cannot be mechanically relied upon. In fact, it is the duty of the Court to examine a dying declaration with studied scrutiny to find out whether the same is voluntary, truthful and made in a conscious state of mind and further it is without any influence.

20. At this juncture, we may quote a passage from Babulal v. State of M.P. wherein the value of dying declaration in evidence has been stated:-

"7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."

21. Dealing with the oral dying declaration, a two-Judge Bench in Prakash V. State of M.P. has stated thus:

"11. ... In the ordinary course, the members of the family including the Page No.# 22/24

father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."

22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW-1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect."

40. From a careful reading of the testimony of PWs-4, 5, 8 and 10 in the light of law

laid down in the aforesaid decision, we are of the view that the evidence of these

witnesses pertaining to the oral dying declaration of the deceased appears to be

credible and the unalloyed truth and therefore, can be relied upon by the court. We

are, therefore, of the unhesitant opinion that the evidence led by the prosecution

establishes the charge brought against the appellant No.1 Aftab beyond reasonable

doubt and therefore, the learned trial court had rightly convicted him.

Page No.# 23/24

41. In so far as the appellant No.2, Intaz Ali is concerned, there is evidence on

record to show that he is the one who had requested the deceased to accompany

him to the Kaki market on the day of the incident. However, save and except the

above, there is no evidence to clearly establish the chain of circumstances so as to

prove the charges brought against the said appellant. From the evidence available

on record, we find that the PW-1 is the only person who had named Intaz as one of

the assailants. However, as noted above, PW-1 was not an eye-witness to the

occurrence. He had also not named any of the accused persons including the

appellant No.2 Intaz while calling the police from the P.C.O. soon after the

occurrence. Therefore, there is considerable doubt as to whether he had actually

seen any of the assailant(s).

42. PW-11 has no doubt named appellant No.2 Intaz as one of the accused but

for the reasons stated herein before, we have already held that his testimony was

liable to be discarded. Therefore, it is clear that there is no evidence to implicate the

appellant No.2 Intaz in the commissioning of the crime.

43. Besides the above, we also find that the evidence available on record with

regard to the six accused persons, who had been acquitted by the learned trial court

and the appellant No.2 Md. Intaz Ali is identical. The position is, however, different

only in case of appellant No.1 Aftab. There is also an oral dying declaration

implicating Aftab. Therefore, if Intaz Ali is on an equal footing as the six other

accused persons who have been acquitted by the learned trial court, in view of the

law laid down by the Supreme Court in the case of Laxman (supra) we are of the Page No.# 24/24

view that the same evidence cannot be split so as to grant benefit to some of the co-

accused while maintaining the conviction to another, when all of them stand on the

same footing in all other respect.

44. For the reasons stated herein above, this appeal succeeds in part. The

conviction of appellant No.1, Aftab Uddin, is hereby affirmed. However, in so far as

the appellant No.2, Md. Intaz Ali is concerned, his conviction is set aside. The

appellant No.2 Md. Intaz Ali is hereby acquitted.

We are informed that the appellant No.2, Intaz Ali, is in jail. Therefore, we direct

that he be released forthwith, if his custodial detention is not required in connection

with any other case.

Appeal stands disposed of accordingly.

Send back the LCR.

                                JUDGE                               JUDGE

Comparing Assistant