Gauhati High Court
Crl.A./78/2015 on 7 June, 2022
Page No.# 1/19
GAHC010114752015
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Case No: CRL.A 78 of 2015
1. Fakhar Uddin
S/O Late Suraj Ali
Both Appellant Nos. 1 and 2 are R/O Vill. Pachala
P.S. Ratabari
Dist. Karimganj.
2. Jalaluddin
S/O Late Indan Ali,
3. Joinul Hoque
S/O Late Joinal Uddin
Appellant Nos. 3 and 4 are R/O Vill. Rosanabad
P.S. Ratabari
Dist. Karimganj.
4. Noor Hussain
S/O Late Mosod Ali
R/O Vill. Chanmari
P.S. Ratabari
Dist. Karimganj
.................................. Appellants
Versus
1. State of Assam
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2. Kalam Hussain
S/O Ajmal Ali
R/O Vill. Rosanabad
P.S. Ratabari
Dist. Karimganj ..........................................Respondents
:: BEFORE ::
HONOURABLE MR. JUSTICE SUMAN SHYAM
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellants/Petitioners : Mr. T.J. Mahanta
For the Respondents : Ms. B. Bhuyan
Date of Hearing : 23.05.2022
Date of delivery of
Judgment and Order : 07.06.2022
JUDGMENT & ORDER (CAV)
Malasri Nandi, J.
1. Heard Mr. T.J. Mahanta, learned senior counsel assisted by Mr. A. Das, learned
counsel for the appellants. We have also heard Ms. B. Bhuyan, learned senior counsel
assisted by Ms. B. Bora, learned counsel representing the State respondent.
2. The instant appeal has been preferred by the accused/appellants being
aggrieved and dissatisfied with the Judgment of conviction dated 23/12/2014 passed
by the Learned Additional Sessions Judge, Karimganj in Sessions Case no 85/2011
whereby the Learned Trial Court had convicted the appellants u/s 302/149 IPC and
sentenced them to undergo imprisonment for life and to pay fine of Rs. 50,000/- each
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in default to undergo rigorous imprisonment for one year each. They were further
sentenced to undergo rigorous imprisonment for 3 years for committing the offence
u/s 148/149 IPC. All the sentences were directed to run concurrently.
3. The brief facts of the prosecution case is that the informant Kalam Hussain
lodged an Ejahar on 07/11/2009 before the O/C, Ratabari P.S. stating inter alia that
on 04/11/2009 around 7 A.M. the accused persons namely Suruj Ali, Fakharuddin,
Jalaluddin, Haris Ali, Joinul Haque and Hussain Ahmed attacked his elder brother Abul
Hussain on the road due to previous enmity. They first abused his brother and then
Suruj Ali struck a blow with a lathi on the head of his brother causing injuries thereon.
When his brother fell on the ground, the rest of the accused persons started to assault
him with lathis as a result of which, he sustained injuries on different part of his bodies.
Thereafter, his brother became unconscious and the accused persons had left the
place. Subsequently his brother was taken to Ratabari P.S. in a critical condition and
the police sent him to Chargola Hospital for treatment. As the condition of his brother
was critical, his injured brother had been shifted to Silchar Medical College and
Hospital wherein he succumbed to his injuries.
4. On the basis of the complaint, a case was registered vide Ratabari P.S. case
no 105/2009 u/s 147/148/302/149 IPC and the investigation had started. In the course
of investigation, the investigating officer visited the place of occurrence, recorded
the statement of the witnesses and prepared the site plan of the place of occurrence
vide exhibit 5. During investigation, inquest on the dead body of the deceased was
performed and subsequently, post mortem examination was conducted at Silchar
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Medical College and Hospital. After completion of investigation, charge sheet was
submitted against the aforesaid accused persons, except Haris Ali, u/s
147/148/302/149 IPC before the court of Judicial Magistrate First Class, Karimganj.
Learned Judicial Magistrate First Class took cognizance of the case but as section 302
IPC is exclusively triable by the court of sessions, the case was committed
accordingly. During trial, all the accused persons aforesaid put their appearance
before the court and charge was framed accordingly u/s 148/302/149 IPC to which
they pleaded not guilty and claimed to be tried.
5. To substantiate the case of prosecution, eleven witnesses including one court
witness Noorjahan Bibi, wife of the deceased, were examined and marked six
exhibits. On the other hand, the defence did not choose to adduce any evidence.
The case of the defence was total denial. After conclusions of trial the trial, court
recorded the statements of the appellants u/s 313 Cr.pc and on being asked against
the incriminating materials found against the accused persons, they denied the
same.
6. Accused Jalaluddin stated in his statement u/s 313 Cr.P.C that on the date of
occurrence, at about 10-11 AM he came to know that deceased fell down from a
bridge. He visited the house of the deceased and sent the deceased to hospital. He
did not accompany the injured. He was sent to Ratabari and then to SMCH. On the
next day, he came to know that Abul Hussain died. He had participated in
performing the last rites of Abul Hussain. After about 7 days police informed him that a
murder case was filed against him.
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7. It is also stated by accused Jalaluddin when his statement was recorded u/s
313 that he won the Panchayat Election from the said locality. Had he committed
any crime, he would not have been elected. The other accused persons also took
the plea of Alibi during recording their statements u/s 313 Cr.P.C. They simply stated
that they were not present at the time of the incident. Abul Hussain died by falling
from a bridge but to prove the plea of alibi no witness was examined in support of
their contention.
8. The learned Trial court after appreciating and analysing the evidence of
witnesses and other materials available on the record, delivered the impugned
Judgment and order sentencing the accused/appellants as aforesaid. Hence, this
appeal.
9. It is pertinent to say here that the prime accused/appellant Suruj Ali died
during the pendency of the appeal as reported by learned counsel for the
appellants. Hence, the case has abated against him.
10. Learned senior counsel for the appellants Mr. T.J. Mahanta submitted that
there is no direct evidence in the case against the appellants. There is no material
evidence on record for convicting the appellants. Though P.W-1 was the informant
and the eye witness to the incident but while deposing before the court he did not
support the prosecution case, As such, the witness was declared hostile during Trial. It
is also the submission of the learned counsel for the appellant that P.W-3 Saddam
Hussain who is the son of the deceased also turned hostile before the Trial court but
after two years on a petition filed by the prosecution side the learned Trial court re-
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examined P.W-3 which is against the provision of law. Learned counsel for the
appellant also argued that the Trial court has convicted the appellants on the
evidence of hostile witnesses. The conviction cannot be based on the evidence of
hostile witnesses and their testimony has to be discarded and the infirm witnesses
cannot corroborate each other. Hence, accused/appellants deserve to be
acquitted on benefit of doubt.
11. In reply, learned counsel for the respondent/state, Ms. B. Bhuyan has
contended that there is no bar that the conviction cannot be based on the
testimony of the hostile witnesses, if corroborated. In this case, the evidence of hostile
witnesses is fully corroborated by the medical evidence. Though P.W-3 while
deposing before the court, he was declared hostile but subsequently the trial court
allowed re-examination of P.W-3 wherein he narrated the entire facts what he had
seen on the date of incident. From his deposition, it is clear that as he was threatened
by the accused Jalaluddin and that is why he did not support the prosecution case
earlier. It is also her submission that his evidence before the court on subsequent date
matches with his statement while recorded by the Investigating officer u/s 161 Cr.P.C.
Hence, the Trial court has rightly convicted the accused/ appellants which does not
call for any interference.
12. After hearing the learned counsel for the parties, we have considered the
evidence of the witnesses. We have also gone through the record of the Trial court
along with the other documents available therein.
13. Admittedly P.W-1, P.W-2 and P.W-3 did not support the case of the prosecution
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as such on the prayer of Public Prosecutor, these witnesses were declared hostile by
the court.
14. In the case of Vinod Kumar v. State of Punjab reported in AIR 2015 SC 1206,
Hon'ble Supreme Court held that the prosecution case would not collapse just
because the complainant turned hostile. The accused can be convicted by the
court if the other evidence adduced by the prosecution well proves the case to the
satisfaction of the court. Now the question is whether there is any other evidence
than that of PW1, PW2 and PW3 to prove the prosecution case.
15. It is not in dispute that the prosecution was permitted to cross examine P.W-1
Kalam Hussain but P.W-3 though declared hostile but he was not cross examined by
the prosecution. P.W-3 on his re-examination had supported the prosecution case
and it appears that he had stated the same version while his statement was recorded
by the investigating officer during investigation. As per medical evidence, Dr. Gunajit
Das found depressed fractures over the skull and linear fracture over left and right
parietal bone and fracture of left temporal bone of the deceased. Doctor opined
that the death was due to coma resulting from head injuries sustained which was
antimortem and caused by blunt force impact and the death was homicidal in
nature. In his cross examination, the medical officer admitted that such type of
injuries cannot be caused by fall on stone and by fall from a bridge.
16. P.W-1 Kalam Hussain is the informant of the case. He is the brother of the
deceased Abul Hussain. He deposed in his evidence that on the date of occurrence
at about 6 A.M while he was working in his paddy field, he had heard shout of his
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brother Abul Hussain and he rushed to the place of occurrence and found that he
was lying in a drain. He pulled out his brother from the drain and took his injured
brother to Ratabari Hospital fromwhere he was referred to Karimganj Civil Hospital
and thereafter he was shifted to Silchar Medical College and Hospital where he died.
He noticed injuries on the back side head of his brother. His wife Jaimunnessa told him
that accused Suruj Ali, Jalal, Fakharuddin and one Hussain and Joinal Haque were
found running from the place of occurrence. On the following day he lodged an
Ejahar vide exhibit 1. He could not say who assaulted his brother.
This witness was declared hostile.
17. It is seen that this witness stated before the IO that he had seen Suruj Ali with a
wooden Stick in his hand and with the said lathi, he struck the blow towards his
brother Abul Hussain causing injury to his head. Suruj Ali was accompanied by his sons
Fakharuddin, Jalaluddin, Haris Ali and Joinal Haque. They also assaulted his brother
Abul Hussain. The statement of PW1 was confirmed by P.W-10, the Investigating
officer while deposing before the court.
18. P.W-2 is Ator Ali. He deposed in his evidence that he belongs to the same
locality of the accused and the complainant. About two years back, Abul Hussain,
elder brother of the complainant, died. On the date of incident at about 7 - 7:30
A.M. he was at his house. Having heard hue and cry he rushed to the place of
occurrence and found Abul Hussain being injured, was taken to the hospital. He
noticed blood was oozing out from ears of Abul Hussain. He succumbed to his injuries
at Silchar Medical College and Hospital. He (P.W-2) did not see the occurrence. This
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witness was also declared hostile during trial.
19. The statement of PW2 was also confirmed by the PW10 Investigating officer
that P.W-2 stated before him that hearing a sudden commotion, he went to the
place of incident and while on the road, he had seen six persons viz. Suruj Ali,
Fakharuddin, Jalaluddin, Haris Ali, Joinal Haque and Hassan Ahmed going along with
the road to the south and each of them was carrying wooden stick and he had
noticed a 'bhojali' in the hands of Jalaluddin.
20. P.W-3 Saddam Hussain is the son of the deceased Abul Hussain. He deposed in
his evidence that on the date of occurrence, in the morning hour at about 6 A.M. his
father went out with his cycle. At that time, having heard hue and cry he went out
and found his father lying beneath a wooden bridge. He found his father being
injured, was lifted by his uncle Kalam Hussain. He was then taken to SMCH. He
returned back home and subsequently came to know that his father expired in the
hospital. There was a land dispute between his father and the accused persons. He
could not say how the accused persons were made accused in this case.
21. This witness was also declared hostile during trial, but it is curious to note that
there was no prayer by the prosecution to cross examine P.W-3 as such P.W-3 was not
cross examined by the prosecution.
22. As we have already stated that on the prayer of prosecution PW3 was re-
examined, wherein PW3 stated that he studied upto class VI. He had earlier given
evidence in this case. At that time he was compelled to give false evidence because
he was threatened by the accused Jalaluddin on the previous day of giving his
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earlier deposition that If he deposed truly before the court, they would kill him and his
younger brothers and sisters. Jalaluddin is their neighbour. Due to the said threat, he
got frightened and to save their lives he did not say the true facts before the court
earlier in his evidence.
23. According to P.W-3, on the day of occurrence in the morning hour, he was
sitting in his house and playing with his mobile phone. At that time, he saw accused
Suruj Ali and Jalaluddin taking away beetle nut leaves from their beetle nut leaf
garden. When his father protested and asked as to why they took away beetle nut
leaves from their garden, accused attacked him and struck him with wooden stick
over his head. Accused Jalaluddin had asked Suruj Ali to assault his father. Then Suruj
Ali struck his father with wooden stick over his head. Other accused namely
Fakharuddin, Joinul Haque and Noor Hussain were also present there with Suruj Ali
and Jalaluddin. After receiving the blow over his head, his father fell down. At that
time his mother rushed to the place to save his father and she was also assaulted by
the accused Jalaluddin. All the accused persons assaulted his father with a wooden
stick. He also rushed to the spot where the accused were assaulting his father. By that
time the accused persons had left the place. After the incident Farukuddin, aunt Sofa
Khatoon and Jaimunnessa also came to the spot. They had also noticed the
accused persons leaving the said place. He along with his uncle took his father to
Ratabari PHC where from he was referred to Karimganj Civil Hospital and then to
Silchar Medical College and Hospital wherein he succumbed to his injuries.
24. In his cross examination, P.W-3 replied that on the previous occasion i.e. before
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the present re-examination, he was brought to the court by the accused Jalaluddin.
At that time he had not received any summons from the court. Before the present re-
examination he had received summons issued by the court. The beetle nut leaf
garden is situated at a distance of 1 k.m. from their house. Accused Suruj Ali is a
resident of village Pechala. He knew him since his childhood and he used to call him
as uncle. Accused Jalaluddin is their adjacent neighbour.
25. P.W-4 is Ijjad Ali. He deposed in his evidence that on the date of occurrence at
about 7 A.M. while he was in his paddy field, he heard hue and cry and went to the
place of occurrence and found Abul Hussain lying under the wooden bridge in
injured condition. He found Kalam Hussain brother of the deceased and wife of the
deceased with some other persons present there. They lifted the injured. After two
days he came to know that Abul Hussain died.
26. The evidence of P.W-5 is not of much importance. According to him, at the
relevant time on hearing shout, he went to the place of occurrence and found Abul
Hussain lying near the bridge.
27. P.W-6 is Faruk Ahmed, cousin of the deceased. He deposed in his evidence
that on the date of incident at about 6 A.M. he was working in his paddy field.
Suddenly he saw accused Suruj Ali, Jalaluddin along with some others were going out
from their homestead with lathi, handle of spade etc. He had seen Sofa Khatoon,
sister of Abul Hussain, wife of Abul Hussain and wife of Kalam Hussain and brother of
the deceased chasing the accused persons. Having seen the same, he went to the
house of Abul Hussain and on being asked, Sofa Khatoon told him that accused
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Jalaluddin and Suruj Ali inflicted injuries on the head of Abul Hussain. He also noticed
injury mark on the head of Abul Hussain. Though the injured Abul Hussain was taken to
the hospital but subsequently he died.
28. In his cross examination, P.W-6 replied that he did not witness the incident of
assault. Occurrence took place on the western side of the homestead of the
deceased Abul Hussain on the road. There is a stream name Kalacherra passing near
the place of occurrence. There is also a wooden bridge over the stream which is in
the western side of the place of occurrence.
29. P.W-7 is Sofa Khatoon, sister of the deceased Abul Hussain. She deposed in her
evidence that on the date of incident at about 6 A.M while she was working in their
paddy field, at that time she had seen her brother came out on the road. While her
brother was proceeding, accused Jalaluddin had given order to accused Suruj Ali to
assault her brother and accordingly accused Suruj Ali inflicted injuries on the head of
her brother with a handle of spade. Having seen the same she chased them and on
the way she found her cousin Faruk, who stopped her and brought her back to the
place of occurrence where she found her injured brother lying on the ground. The
injured was taken to the hospital. Later on, she came to know that her brother Abul
Hussain succumbed to his injuries.
30. In her cross examination, P.W-7 replied that there was a wooden bridge over
the Kalacherra stream near the place of occurrence. They are to cross the bridge to
reach their respective houses. At the time of alleged incident, his brother Kalam was
in his house and his wife was on the other side of the bridge. She (P.W-7) first reached
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the place of occurrence and thereafter Jaimunnessa, wife of Kalam and Noorjan
Bibi, wife of the deceased came to the spot. Similarly Saddam Hussain, son of Abul
Hussain came lately on the spot.
31. P.W-8 is Jaimunnessa, wife of the informant Kalam Hussain. From her
deposition, it reveals that on the date of incident in the morning hour at about 6 A.M
she was collecting garbage from their garden and at that time her husband was also
at home. Suddenly she had heard scream of her sister in law and she rushed to the
place of occurrence and found Abul Hussain lying on the ground with head injuries.
Blood was oozing out from his nose and ear. She along with Sofa Khatoon chased the
accused persons from the place of occurrence. Sofa Khatoon told her that she saw
accused Suruj Ali inflicted injuries with a lathi. The injured was taken to the hospital but
on the same night he succumbed to his injuries at SMCH.
32. In her cross examination, P.W-8 replied that the occurrence took place near
the stream Kalacherra on the road. There was a wooden bridge across the
Kalacherra stream. When she came to the spot, she found wife of Abul Hussain and
Sofa Khatoon. She did not see any accused assaulting Abul Hussain.
33. The wife of the deceased Noorjan Bibi was examined in the case as CW1. She
deposed in her evidence that on the date of incident at about 6 to 6:30 A.M. she
along with her husband were working in a vegetable garden infront of their house. At
that time for bringing some beetle nut leaves from their beetle nut leaf garden, her
husband went out from the vegetable garden and he could see accused taking
away beetle nut leaves from their garden. Her husband protested and asked
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accused Suruj Ali, Fakharuddin, Jalaluddin, Joinul Haque and Noor Hussain as to why
they took away the beetle nut leaves from their garden. At this, her husband was
assaulted by the accused persons with wooden sticks causing injury to his head. After
hearing the scream of her husband, she rushed to the place of occurrence and she
was also assaulted by accused persons with wooden sticks as a result of which she fell
down and became unconscious. At the time of occurrence, her sister in law Sofa
Khatoon and Jaimunnessa were also working in their respective vegetable garden.
They had also rushed to the place of occurrence following her.
34. In her cross examination, C.W-1 replied that the beetle nut garden is situated in
the southern side from their house. The said garden is not visible from their house. At
the time of occurrence, she had reached the place of occurrence first. Thereafter
PW1, PW7 and PW8 reached there. Though she sustained injuries, she was not treated
in any hospital. Police did not record her statement because she was unconscious for
about one week after the incident.
35. P.W-10 is Sajal Kumar Deb, the investigating officer of the case. He deposed in
his evidence that on 04/11/2009 he was posted at Ratabari Police Station. On that
day, the informant Kamal Hussain had come to the police station along with his
injured brother Abul Hussain at about 9:15 A.M in the morning hour and reported
about the incident which had taken place in the locality where they used to live.
Accordingly GD entry was made vide Ratabari P.S. GDE No. 71 dated 04/11/2009.
The injured was immediately sent to Karimganj Hospital for treatment and thereafter
to Silchar Medical College and Hospital wherein he succumbed to his injuries. On
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05/11/2009 the informant Kamal Hussain had lodged a formal FIR at Ratabari P.S. and
a case was registered vide Ratabari PS case No 105/2009 u/s 147/148/302/149 IPC.
The OC Ratabari PS endorsed him with the investigation of the said case. On
05/11/2009 he had visited the place of occurrence, prepared a rough sketch map
vide exhibit 5 and recorded the statement of witnesses. He had also arrested
accused Suruj Ali, Fakharuddin, Jalaluddin, Joinul Haque and Noor Hussain and
forwarded them before the court. After completion of the investigation, he had
submitted charge sheet against the aforesaid accused persons.
36. It is not in dispute that the deceased Abul Hussain died due to homicidal
death. As per the PM report, the deceased sustained depressed and linear fractures
on his head. The medical officer who conducted autopsy also opined that death was
due to coma resulting from head injuries sustained which were antimortem and
caused by blunt force impact. Now the question comes who were the perpetrators
of the crime. The Trial court convicted the accused Suruj Ali, Fakharuddin, Jalaluddin,
Joinul Haque and Noor Hussain. Though appeal was filed by those five persons out of
which one of the appellants Suruj Ali died during the pendency of the appeal.
37. Admittedly PW1 did not support the case of prosecution and he was declared
hostile during trial. Though he resiled from his earlier statement that he had seen the
accused Suruj Ali struck lathi blow to his brother Abul Hussain causing injury to his
head, but he has supported the prosecution case by stating that on the date of
occurrence in the morning hour while he was working in his paddy field, he heard the
shout of his deceased brother Abul Hussain and rushed to the place of occurrence
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and found his deceased brother lying on the drain. He came to know from his wife
Jaimunnessa that she had noticed accused Suruj Ali, Jalaluddin, Joinul Haque,
Fakharuddin and Hussain running from the place of occurrence. It also appears from
the evidence of P.W-1 that there had been land dispute and a case is pending with
the accused persons for that he suspected that the accused persons had committed
the offence. According to P.W-1, he was not present when the incident took place.
P.W-7 and P.W-8 also supported the versions of P.W-1 that he came to the spot later
on. According to P.W-7, she first reached the place of occurrence and thereafter
Jaimunnessa, wife of Kalam Hussain and Noorjan Bibi (C.W-1) and P.W-3 Saddam
Hussain came to the spot. But C.W-1 deposed that she arrived at place of
occurrence first and thereafter P.W-1, P.W-7 and P.W-8 reached there.
38. We have already discussed the evidence of P.W-3 who is the son of the
deceased. Though, he was declared hostile during trial, but he was not cross
examined by the prosecution. Subsequently, he was re-examined as per the order of
the Trial court wherein he narrated about the case that he had seen the
accused/appellants assaulting his father. According to P.W-3, Suruj Ali inflicted injuries
towards his father with a wooden stick causing injury on his head. All the accused
then started to assault his father with wooden sticks. P.W-3 specifically stated that
after the incident, his uncle Farukuddin, aunt Sofa Khatoon and Jaimunnessa also
came to the place of occurrence. They had also seen the accused leaving the said
place. From the evidence of P.W-3, it transpires that P.W-7 and P.W-8 were not
present when the actual incident of assault took place.
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39. There are also some contradictions on the relevant points in the statement of
the witnesses while recorded by investigating Officer and their evidence before the
court. P.W-10, the Investigating Officer, also confirmed the statement of the witnesses
while deposing before the Court.
40. P.W-6 admitted that he did not state before the investigating officer that he
had seen the wife of the injured (Abul Hussain) along with P.W-7 and P.W-8 chasing
the accused and he could know from the wife of the injured that as ordered by the
accused Jalal, accused Suruj Ali had inflicted injury. P.W-7 in her statement before the
investigating officer did not state that as ordered by Jalaludin, Suruj Ali inflicted injury
with the handle of spade and she had chased and drove away the accused.
41. P.W-7 also did not state before the investigating officer that at the time of
occurrence she was about 4/5 nals away from the place of occurrence but she
stated before him that she was present in the vegetable garden.
42. P.W-8 in her statement before the investigating officer did not state that she
along with P.W-7 had chased away the accused from a place near the house of
P.W-6.
43. In view of the evidence of aforesaid witnesses, now the sole question before
this court is that what is the legal position of the evidence of hostile witness, whether
testimony of the hostile witnesses is to be fully discarded or any conviction can be
based on the evidence of hostile witnesses. Section 154 of the Evidence Act provides
that the court may in its discretion permit the person who calls a witness to put a
question to him which might be put in cross examination by the adverse party.
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44. In the case of Bhagwan Singh v. State of Haryana reported in AIR 1976 SC 202,
three judges of the Supreme Court has held that where the court gives permission to
the prosecutor to cross examine his own witness, thus characterizing him as a hostile
witness, that fact does not completely efface his evidence. The evidence remains
admissible in the trial and there is no legal bar to base a conviction upon his
testimony if corroborated by other reliable evidence.
45. In another case Devraj v. State of Chattisgarh reported in (2016) 13 SCC 366, it
was held that evidence of hostile witness can be relied on, if there are some other
material, on the basis of which said evidence can be corroborated and more so, that
part of evidence of witness, as contained in examination in chief, which remains
unshaken even after cross examination, is fully reliable, even though witness has been
declared hostile.
46. From the above conspectus, it emerges clear that even in a criminal
prosecution when a witness is cross examined and contradicted with the leave of the
court, by the party calling him, his evidence cannot, as a matter of law, be treated as
washed off the record altogether.
47. From the aforesaid decisions, it is also clear that the Apex court has clearly laid
down the law that the evidence of hostile witnesses cannot be discarded in toto. His
evidence to the extent to which it supports the prosecution version, can be relied
upon if that part of the deposition is found to be creditworthy. Therefore, if the case in
hand is examined in the light of the aforesaid pronouncement of the Apex court,
there is no trustworthy evidence found against the appellants as P.W-3, P.W-7, P.W-8
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and C.W-1 have created doubt about their presence at the relevant time of incident
on the spot. Therefore, simply on the evidence of P.W-3 and P.W-7 (when their
presence at the place of occurrence are doubtful) that as per direction of
Jalaluddin, Suruj Ali inflicted injury to the deceased, conviction of the appellants
cannot be sustained. Admittedly, Suruj Ali died during pendency of the appeal.
48. In the result, appeal is allowed. The impugned judgment dated 23.12.2014
passed by the learned Additional Sessions Judge, Karimganj, in Sessions case no.
85/2011 is set aside. The accused/appellants be released forthwith if not wanted in
any other case.
49. LCR be returned back.
JUDGE JUDGE
Comparing Assistant
