Gauhati High Court
Page No.# 1/35 vs The State Of Assam And Anr on 23 January, 2024
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/35
GAHC010254582019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./415/2019
ZAKIR HUSSAIN AND 2 ORS.
S/O- LATE KHOKSED SK., R/O- VILL.- BARGIRAIRPAR
2: SOPIOR RAHMAN
S/O- LATE GENDELA SK. @ DIDAR ALI
R/O- VILL.- FAKIRANIRJHAR PART-II.
3: SOLEMAN SHEIKH
S/O- LATE GENDELA SK. @ DIDAR ALI
R/O- VILL.- FAKIRANIRJHAR PART-II
ALL ARE UNDER P.S. BILASIPARA
P.O. BARKANDA
DIST.- DHUBRI
ASSAM
PIN- 783348
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY TH P.P., ASSAM
2:JALIBAR RAHMAN
S/O- LATE AYNAL HOQUE
R/O- VILL.- SOTAGIRAI
P.S. BILASIPARA
P.O. BORKANDA
DIST.- DHUBRI
ASSAM
PIN- 783348
Advocate for the Appellant(s) : 1.Mr. Z. Kamar, Senior Advocate
2.Mr. A. Rahman, Advocate
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Advocate for the Respondent : 1.Ms. B. Bhuyan, Additional Public Prosecutor
2.Ms. P.Bora, Advocate
Date of hearing: 08.12.2023
Date of judgment: 23.01.2024
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT & ORDER (CAV)
(Mridul Kumar Kalita, J)
1. Heard Mr. Z. Kamar, learned Senior Counsel, assisted by Mr. A.
Rahman, learned counsel for the appellants. Also heard Ms. B. Bhuyan, learned
Senior Counsel-cum-Additional Public Prosecutor, Assam, assisted by Ms. P.
Bora, learned counsel appearing for the State of Assam.
2. This appeal under Section 374(2) of the Code of Criminal Procedure,
1973 has been preferred by the appellants, namely, 1. Zakir Hussain, 2. Sopior
Rahman and 3. Soleman Seikh impugning the Judgment and Order dated
16.09.2019 passed by the learned Additional Sessions Judge, Bilasipara in
Sessions Case No. 30/2014 whereby, the appellants were convicted under
Section 448 of the Indian Penal Code and were sentenced to undergo rigorous
imprisonment for 3(three) months. The appellants were also convicted under
Section 326 of the Indian Penal Code and were sentenced to undergo rigorous
imprisonment for 1(one) year and to pay a fine of Rs. 2000/- each and in
default of payment of fine to undergo rigorous imprisonment for 1(one) month.
The appellants were also convicted under Section 302 of the Indian Penal Code
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and were sentenced to undergo rigorous imprisonment for life with a fine of Rs.
5,000/- and in default of payment of fine to undergo further rigorous
imprisonment for 3(three) months. The conviction of the appellants under
Section 448/326/302 of the Indian penal code was with the help of Section 149
of the Indian Penal Code.
3. The facts relevant for consideration of the instant appeal, in brief,
are as follows:-
i. On 22.01.1997, one Jalibar Rahman had lodged an FIR
before the Officer-in-Charge of Bagribari Police Station, inter-alia,
alleging that on 22.01.1997 at about 5:30 PM, Anowar Hussain,
Kapiluddin Ahmed and Jumar Ali were having Iftar at the house
of Anowar Hussain at Chalbandagaon and at that time the
accused persons named in the FIR, namely, 1. Khalek Seikh, 2.
Soleman Seikh, 3. Azibar Rahman, 4. Amir Hussain, 5. Zakir
Hussain, 6. Lalbabu Seikh, 7. Meher Ali and 8. Sopior Rahman
entered the house of Anowar Hussain and dragged him out to the
courtyard and assaulted him with sharp weapon, causing severe
injuries on his face, chest, neck and hand and as a result of the
injuries sustained during the assault, he died. It is also alleged in
the FIR that the accused persons named in the FIR had also
assaulted Kapiluddin Ahmed by hacking him on his neck with a
sharp weapon. However, Jumar Ali escaped from there.
ii. On receipt of the said FIR, the Officer-In-Charge of
Bagribari Police Station registered Bagribari P.S. Case No. 09/1997
under Section 147/148/149/448/326/302 of the Indian Penal
Code and initiated the investigation. Ultimately, after completion
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of the investigation, charge-sheet was laid against the accused
persons namely, Soleman Seikh, Azibar Rahman, Amir Hussain,
Zakir Hussain, Meher Ali, Lalbabu Seikh and Sopior Rahman
under Section 147/148/149/448/326/302 of the Indian Penal
Code.
iii. Out of the 7(seven) accused persons against whom the
charge-sheet was laid the attendance of 3(three) accused
persons could not be secured during the trial. They are Amir
Hussain, Lalbabu Seikh and Meher Seikh. After issuing orders of
proclamation as absconder and attachment of the property of the
said accused persons, and after issuing non-bailable warrant of
arrest against the aforesaid accused persons, the case of Amir
Hussain and Meher Seikh was filed by order dated 26.04.2012
and similarly, the case of Lalbabu Seikh was filed by order dated
26.09.2020.
iv. Only 4(four) accused persons namely, Soleman Seikh,
Azibar Rahman, Zakir Hussain and Sopior Rahman appeared
before the court to face trial. By order dated 11.07.2014, charges
under Section 147/148/149/447/326/302 of the Indian Penal
Code were framed against the accused persons namely, Soleman
Seikh, Zakir Hussain, Azibar Rahman and Sopior Rahman.
However, later on, the accused Azibar Rahman was found to be a
juvenile on the date when the offence was committed, and
therefore, by order dated 05.09.2014, his case was sent to the
Juvenile Justice Board, Dhubri, for inquiry, and the remaining
3(three) persons namely, Soleman Seikh, Zakir Hussain and
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Sopior Rahman had faced the trial.
v. During the trial, the prosecution side examined 15
numbers of prosecution witnesses. The accused persons were
examined under Section 313 of the Code of Criminal Procedure,
1973 during which, they pleaded their innocence and denied the
truthfulness of the testimony of the witnesses for the prosecution
side. However, the accused persons declined to adduce any
evidence in their defence.
vi. Ultimately, by the judgment, which has been impugned in
this appeal, the petitioners were convicted and sentenced in the
manner as already described in paragraph No.2 hereinabove.
vii. Learned counsel for the appellants has also informed this
Court that during the pendency of this appeal one of the
appellants, namely, Soleman Seikh, had expired. Hence, this
appeal qua the said appellant has abated.
4. Before considering the submissions made by learned counsel for
both the sides, let us go through the evidence which is available on record.
5. PW-1 Durbaksh Seikh deposed in his testimony that the incident
occurred about 15-16 years before his deposing before the Court as a witness.
He has deposed that on the date of occurrence of the incident he heard hue and
cry in his area coming from the side where the house of Anowar Hussain was
situated and he proceeded there and saw Anowar Hussain lying dead on the
floor, with many people gathered there.
During cross-examination, he deposed that it was a dark evening when he
reached the place of occurrence and he cannot say as to how the deceased
died.
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6. PW-2 Sopiar Ali @ Rahman deposed that he came to know that
Anowar Hussain was killed by some persons and he went to the place of
occurrence and saw the dead body of Anowar Hussain in his home and blood
was oozing out from his body and many people had gathered there.
During cross-examination, he deposed that he cannot say as to who had
killed the deceased. He has also deposed that several cases were pending
against the deceased.
7. PW-3 Abu Bakkar Seikh deposed that on the day of occurrence of the
incident, he heard hue and cry in the house of Anowar Hussain and immediately
went to the house of Anowar Hussain where he saw the accused persons were
assaulting Anowar Hussain and one Kapiluddin Ahmed. He identified the
accused persons in the Court and stated that they were present at the time of
the incident and caused the incident. He also stated that the accused persons
caused several stab injuries on Anowar Hussain's body with dagger, knife, etc.
He also stated that at the time of the incident, Kapiluddin Ahmed and Jumar Ali
were present in the house of Anowar Hussain. He has also stated that the
accused persons had assaulted and hit on the shoulder of Kapiluddin Ahmed as
a result of which Kapiluddin Ahmed fell down and received deep cut injuries on
his shoulder. He has also stated that the accused person could not assault
Jumar Ali as he escaped from there by hiding himself. PW-3 has also stated that
the accused persons had thrown handmade bombs in order to escape from that
place, and therefore, they could not be caught. He has also stated that they
could capture one of the accused, namely Meher Ali, on the road. He has also
stated that he witnessed the entire incident along with Joynal, Jarina, Anju, and
Chatu. He has also stated that the police recorded his statement and he told
about the incident to the police. He also stated that he saw Soleman Seikh,
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Zakir Hussain, Azibar Rahman, Amir Hussain, Meher Ali, and others. He has also
stated that before the said incident, the accused persons had also killed the son
of the deceased in another incident.
8. During cross-examination, PW-3 has stated that the occurrence took
place at the time of Iftar. He has also stated that his house is about five houses
apart from the house of the deceased. He has also stated that when he reached
the place of occurrence, he saw deceased Anowar lying on the ground in the
courtyard and the accused persons were running away from there after
committing the incident. He has also stated that they chased the accused
persons in order to catch them and followed them for about one to one and a
half kilometres. He has also stated that the deceased was his
brother. PW-3 answered in negative to certain suggestive questions put to him
by the learned defence counsel.
9. PW-4, Joynal Seikh, has deposed that the incident occurred about 18
years prior to his deposing before the Court and on the date of the incident, on
hearing hue and cry, he came out of his room and rushed to the place of
occurrence and when he was going towards the place of occurrence, he was hit
by somebody on his backside causing him to fall down on the ground and he
could not go to the place of occurrence. Later on, he came to know that his
brother, Anowar, was killed in the incident. It is also stated by PW-4 that his
spinal cord was broken in the said incident. He also heard that in the said
incident, Kapiluddin Ahmed and Jumar Ali received injuries.
During cross-examination, PW-4 has stated that he could not say as to
who caused the incident and as he was hit from behind, he could not say what
had actually happened.
10. PW-5, Atibur Rahman, has deposed that the incident occurred about
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17 to 18 years prior to his deposing before the Court and at that time, he was
10 to 11 years old. On the date of the incident, some people came to his house
for Iftar, and his father, i.e., late Anowar Hussain, asked him to bring betelnut
for them. Thereafter, commotion took place in their house and fighting took
place inside their campus and his father died in the said incident. He saw his
father lying on the ground. However, he could not say as to what had exactly
happened as the incident occurred in the darkness.
11. During cross-examination, PW-5, has deposed that at the time of the
incident, he was too young and therefore, he could not recognise the assailants
who caused the murder. He also stated that the incident occurred in darkness.
12. PW-6, Jalibar Rahman, has deposed that he is the complainant of
the case and the incident occurred about 17 to 18 years prior to his deposing
before the Court. He has deposed that the deceased Anowar Hussain was his
uncle and injured Kapiluddin Ahmed was also from his village. He has deposed
that at the time of the occurrence, he was in his house, which is situated about
half a kilometre away from the house of deceased Anowar Hussain. On the date
of the incident, he heard a hue and cry in their locality and he came to know
that some incident has occurred in the house of his uncle, Anowar Hussain and
thereafter, he immediately proceeded to the house of his uncle. He has further
deposed that after coming to the house of Anowar Hussain, he saw Anowar was
lying dead in his compound and there was profuse bleeding from his body. He
also saw deep cut injury on the neck of the deceased. PW-6 has further
deposed that he also saw one Jumar Ali in the house of the deceased who was
also injured in the incident. It is further deposed by the PW-6 that Jumar Ali told
him that the accused persons came to the house of Anowar Hussain and killed
his uncle, Anowar Hussain, with sharp weapons. He has also stated that one
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Kapiluddin was also injured in the incident. He also stated that Kapiluddin
Ahmed, Jumar Ali, Abu Bakkar Siddique, Asma Bibi and Joynal Seikh witnessed
the incident and they had told him that Anowar Hussain was killed by the
accused persons with sharp weapons. He has further deposed that on the next
morning, he lodged the FIR before Bagribari Police Station against the accused
persons. The said FIR is exhibited as Exhibit-1 by the PW-6. He has also stated
that the police came to the place of occurrence on the date of the incident itself
and inquest was conducted on the dead body. He also exhibited the inquest
report as Exhibit-2.
13. During cross-examination, the PW-6 has deposed that he arrived at
the place of occurrence after 5 minutes of the incident and he witnessed about
40-50 people at the place of occurrence. He has also stated that before the
incident, one Azibar Rahman, who was the son of the deceased Anowar
Hussain, was also killed and that incident had occurred about six months prior
to the said incident. He has also stated that the FIR was written by one
Advocate clerk of Bagribari Police Station as per his instructions.
14. PW-7, Sabeda Bewa, has deposed that the complainant is her
nephew and the deceased was her husband. She has deposed that she knows
the accused persons. She has stated that the incident took place about 15-16
years ago. She has stated that at the time of the incident, the accused persons
went to their house in the evening and accused Zakir Hussain, and other
accused persons had assaulted and hit her husband with a dagger. She has also
stated that all the accused persons had dragged out her husband and hit him
with sharp weapons on his body and she had seen the incident herself. She has
also stated that she tried to save him but the accused persons had shown them
sharp weapons. The PW-7 has also deposed that the accused persons inflicted
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several cut injuries on the body of the deceased. She has also stated that the
accused persons also inflicted injuries on one Kapiluddin Ahmed by giving him
blows of dao. She has stated that her husband died as a result of the injuries
sustained by him. It is also stated that after killing her husband the accused
persons ran away from the spot.
15. During cross-examination, PW-7 has deposed that she is the
second wife of the deceased. She has stated that the incident took place about
20 years ago. At the time of the incident, she was a lactating mother and
therefore, she was inside the house. She has stated that she lived in the same
house and there were two rooms in their house, one was the kitchen and
another room where they resided together. She has also stated that the incident
took place in the month of Ramzan and at that time they were having Iftar. She
has also stated that it was dark at the time of the incident. She has also stated
that at the time of the incident, some people were talking to her husband and
amongst them was one Dilip, who hails from their village. She has also stated
that one of her children had died earlier, and in that case also the accused
persons were the same. She has also stated that Joynal, Atibar, Mir Kasim,
Siddique and many other persons were present there. She has also stated that
the police came to the place of occurrence about half an hour after the incident.
She has also denied the suggestion given by the defence side that she has
deposed falsely.
16. PW-8, Anjuma Bibi, has deposed that she is the daughter of the
deceased and the incident took place about 17 to 18 years ago. She has
deposed that she knows the accused persons. She has deposed that she saw
the incident which took place in the evening. She has deposed that at the time
of the incident she was in her residence. She has stated that the accused
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illegally entered into their house and assaulted her father and thereafter
forcefully took him out. She has also stated that the accused persons had
assaulted her father and inflicted several blows by sharp weapon on the body of
her father. She has deposed that her father sustained several cut injuries and he
died as a result of the said injuries. She has deposed that she saw that the
accused persons were armed with deadly weapons. She has also deposed that
the accused also threatened them and therefore they could not do anything.
She has also deposed that after killing her father, the accused persons left the
place.
17. During cross-examination, PW-8 has deposed that she was about
10 to 12 years of age at the time of the incident. She has further deposed that
at that time she had two mothers, namely Ayesha Bibi and Sabeda. She has
stated that at the time of the incident she was studying in class- "ka". She has
also stated that the incident occurred in the month of Ramzan. She has also
stated that Jainal, Atibar, Siddique, Moharuddin and Mir Qasim were also
present there. PW-8 has also deposed that there were many people present
there and at that time she was in the kitchen and was cooking. Hearing the
sound of knocking at the door, she came out and saw that her father had fallen
down on the ground. She has also deposed that there was no electricity in their
house and they used kerosene lamp. She had denied the suggestion that she
has deposed falsely.
18. PW-9, Asma Bibi, has deposed that on the day of the incident, the
accused persons entered their house and started assaulting her husband. She
has deposed that she knows the accused persons. She also deposed that the
accused persons stabbed her husband with a dagger. She has also deposed that
she witnessed the entire incident. Her husband was dragged out of her house
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by the accused persons who had inflicted blows by sharp weapon. She also
deposed that the accused persons also threatened them.
19. During cross-examination, PW-9 has deposed that the deceased
was her husband and she has seven children. She has deposed that at the time
of the incident, many people had arrived at the place of occurrence. She has
deposed that on hearing hue and cry, she came out and witnessed the incident
and raised an alarm and on hearing the alarm other villagers also came there.
20. PW-10 Jumar Ali has deposed that the incident occurred about 18
years ago at about 5:30 PM. He has deposed that he knows the accused
persons. He has deposed that eight persons had entered the house of Anowar
Hussain. They were Soleman, Sopior, Azibar, Zakir, Khalek, Lal Babu, Amir
Hussain and Meher. He has deposed that all the accused persons caused injury
to Anowar by assaulting him with bamboo sticks. He has also deposed that
accused Azibar hacked him with a Dao. He has also deposed that the deceased
was brought outside his house and accused Azibar held his head and accused
Sopior hacked Anowar. Other accused persons also assaulted Anowar.
Thereafter, the accused persons fled from there, however, they were chased by
the villagers and accused Meher was apprehended.
21. During cross-examination, PW-10 has deposed that earlier he was
made an accused in connection with the murder case of the son of the
deceased. He has deposed that the incident occurred in the month of Ramzan.
He has also deposed that at that time there was no one else in the house
except him and Anowar. He deposed that other people arrived after half an hour.
He has deposed that Asma, Manjur, Siddique, Azibar and Dilip were present
there. He has also deposed that about 10 minutes later, police from Bagribari
Police Station arrived and examined the witnesses including the PW-10. He has
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deposed that the police had arrested Meher and took him away. He has denied
the suggestion that the accused persons had not killed Anowar.
22. PW-11, Kapiluddin Ahmed, has deposed that on the day of the
incident he was present in the house of Anowar along with the other accused
persons. He has deposed that he knows the accused persons. He has deposed
that Azibar has assaulted him with a Dao on the backside of his head. He has
also deposed that the accused persons brought Anowar out of his house and
assaulted him. He has deposed that Soleman had hacked the neck of Anowar
and Azibar cut on his head. He also stated that the other accused persons also
assaulted Anowar with lathi when he fell on the ground.
23. During cross-examination, PW-11, Kapiluddin Ahmed has deposed
that the police recorded his statement 15 days after the incident. He has also
deposed that when he resisted the accused persons, he was hacked on his
back. He has also stated that one Afjal took him to his house. PW-11 has also
deposed that he was in hospital for about 15 days. He answered in the negative
to certain suggestive questions put to him by the learned defence counsel.
24. PW-12 Syed Muktabar Rahman has deposed that on 22 nd January
1997, he was posted as 2nd Officer at Bagribari Police Station. On that day at
about 9:15 PM, one Jalibar Rahman had lodged a written FIR which was
registered as Bagribari P.S. Case No. 9/97 under Section
147/148/149/448/326/302 of the Indian Penal Code and one Giasuddin Ahmed
was entrusted to conduct the investigation. After the transfer of the said
Giasuddin Ahmed, PW-12 was entrusted to conduct the remaining part of the
investigation. After completion of the investigation, PW-12 had laid the charge-
sheet under Section 147/148/149/448/326/302 of the Indian Penal Code.
25. During cross-examination, PW-12 has deposed that he had not re-
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visited the place of occurrence of the offence after getting the charge of
investigation. He has deposed that he submitted the charge-sheet on the basis
of the investigation done by his predecessor.
26. PW-13 Dr Gobinda Mohan Das has deposed that on 22.01.1997, he
was working at Dhubri Civil Hospital as Sr. M & H.O. On that day at about 09.00
PM, he medically examined the patient Md. Kapiluddin Ahmed, Male, 30 years
S/O Md. Durbaksh Seikh of village - Fakiranirjhar Pt-1 under reference Bagribari
PS. Case No. 9/1997. Patient was admitted at the hospital on 22.01.1997 at
about 08.40 PM vide Registration number 93/97 and discharged on 06.02.1997
at about 10.00 AM. During examination he found following -
Injuries
i. Gross sharp cut injury over back of neck and lower scalp 8" X 4" X
2" deep with active bleeding. All muscles are divided patient is
having head injury. Skull bone over the occipital region is cut.
In his opinion, the Injury was fresh, grievous and caused by sharp
weapon. He had exhibited the Medical report as Ext.4.
During cross-examination, PW-13 has stated that he had examined
the patient on police requisition. He did not mention in the medical
report as to who had escorted the patient to the hospital. The
patient was not referred to the Dhubri Civil Hospital or other
hospital. The patient was admitted on 22.01.1997 and discharged on
06.02.1997. He also deposed that the injury sustained by the injured
may have occurred to him in standing position or in sitting position,
but if the offender is more in height than the victim, the injury might
also be caused while the victim was in standing position. of more
27. PW-14 Giasuddin Ahmed has deposed that on 22.01.1997 he was
posted as second officer at Bagribari P.S. On that day Jalibar Rahman lodged a
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written ejahar before the Officer-in-Charge of Bagribari Police Station who
registered Bagribari P.S. Case No. 9/1997 under Section
147/148/149/448/326/302/307 of the Indian Penal Code and the same was
endorsed to him to investigate the case. He has also deposed that in connection
with this case at about 06:45 PM, VDP Secretary Durbaksh Seikh informed the
Officer-in-Charge of the Bagribari Police Station over phone that Soleman Ali,
Abdul Khalek and 6 other persons committed the murder of Anowar Hussain at
his house and also stabbed Kapiluddin. Accordingly, G.D. Entry No. 453 dated
22.01.1997 was made in the Police Station General Diary, and the Officer-in-
Charge along with PW-14 and other staff went to the house of Anowar Hussain.
He also deposed that while they were proceeding towards the place of
occurrence, they met injured Kapiluddin and he was taken to the Hospital, after
making necessary arrangement for his treatment and sending him to the Dhubri
Civil Hospital. PW-14, Officer-in-Charge of Bagribari Police Station and other
staff went to the house of Anowar Hussain where the incident of murder took
place. After reaching the place of occurrence, PW-14 saw the dead body of
Anowar Hussain and conducted an inquest in the presence of witnesses. PW-14
also deposed that thereafter the dead body was sent to Dhubri Civil Hospital for
post mortem examination. PW-14 has also deposed that on the same date, he
drew the sketch map of the place of occurrence and recorded statements of
Sopiar Ali, Durbaksh Seikh, the VDP Secretary who had given the information
over phone, Jumar Ali and Jalibar Rahman. PW-14 also deposed that on the
date of the incident when accused Meher Ali tried to flee away from the place of
occurrence after the commission of the murder of Anowar, the villagers
apprehended him and handed him over to the police. PW-14 also deposed that
in connection with this case Jalibar Rahman lodged a written ejahar before the
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Officer-in-Charge of Bagribari P.S. on 22.01.1997. PW-14 also deposed that after
the registration of the Police case the Officer-in-Charge of Bagribari entrusted
him to do the investigation and accordingly during the investigation PW-14
recorded the statements of other witnesses, seized two numbers of kerosene
lamps and one hurricane lamp. PW-14 also deposed that during the
investigation he arrested accused Soleman Sheikh, Azibar Rahman, Amir
Hussain, Meher Ali, Zakir Hussain, Sopior Rahman and produced them before
the Magistrate. PW-14 also deposed that he collected the injury report of
Kapiluddin and the post mortem report of the deceased Anowar Hussain. PW-14
also deposed that as the accused Lalbabu was absconding he could not arrest
him and thereafter he was transferred so he handed over the case diary to the
Officer-in-Charge of Bagribari Police Station. PW-14 also deposed that S.I.
Muktabur Rahman submitted the charge sheet under supervision of senior
police officer. PW-14 also exhibited the extract copy of G.D. Entry as Exhibit-5.
28. During cross examination, PW-14 also deposed that on 22.01.1997
Officer-in-Charge of the Bagribari Police Station received one information of
murder over phone. PW-14 also deposed that the incident took place on
22.01.1997 at 05:30 PM and verbal information was received at 06:45 PM on
22.01.1997. PW-14 also deposed that after receiving the verbal information and
after making G.D. Entry no 453 dated 22.01.1997, PW-14 and Officer-in-Charge
of Bagribari Police Station along with other staff visited the place of occurrence,
sent injured Kapiluddin to the hospital, recorded the statements of Sopiar Ali,
Durbaksh Seikh, the VDP Secretary who had given the information over phone,
Jumar Ali and Jalibar Rahman, did inquest of the body and sent the dead body
to Dhubri Civil Hospital for post mortem examination. PW-14 also deposed that
during recording of the statement of the witnesses they stated that Jumar Ali,
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Kapiluddin and the deceased were talking in the house of the deceased. PW-14
also deposed that as per the sketch map present in the case diary there were 5
houses shown at the place of occurrence. PW-14 also deposed that the
statement of Mir Qasim was not recorded. PW-14 also deposed that the place of
occurrence was inside the house from where the deceased was dragged to the
courtyard of the compound. PW-14 also deposed that it is not a fact that
without making proper investigation he collected material from the family
members of the deceased only to implicate the present accused persons whose
names were given in an earlier case of murder of the son of the deceased.
29. PW-15 Dr. S.M. Emdadullah has deposed that on 23-01-1997, he
was posted at Dhubri Civil Hospital as Sr. M & HO. On that day, Dr. K. M Das was
also working at Dhubri Civil Hospital as Sr. M & HO, and on that day at about
02.00 PM, he had conducted post mortem examination on the dead body of
Anowar Hussain, Male, 40 years, resident of village Chalbandha, Chotogirair
under Bagribari PS, Dist- Dhubri, under reference Bagribari PS case No.
09/1997. The dead body was escorted by UBC 428 Sankar Roy, UBC 326 L. Z.
Sailo and identified by relatives Jalibar Rahman, Jumar Ali and by UBC 428
Sankar Roy, UBC 326 L. Z. Sailo. On examination of the dead body, the following
was found:-
1. A male body of about 40 years of age with rigor mortis.
2. The neck is severed anteriorly, only the cervical vertebrae are
intact.
3. Muscles of the left side of the face along with vessels and nerves
are severed with sharp weapon extending from the angle of the
mouth to the neck.
4. Muscles of the face along with skin are separated by sharp
Page No.# 18/35
weapon from the upper jaw.
5. Cut injury over scalp along with bone over left temporoparital
region.
6. Scalp is incised over 4 areas.
7. Neck is lacerated upto the bone posteriorly.
8. Six Nos. of penetrating wounds over the right chest and right
shoulder.
9. Right hand is lacerated.
10. One penetrating wound over the left loin (4" X 2" deep into the
left kidney)
Right lung is lacerated; Membrane, Brain and spinal cord, Liver,
Spleen- Pale; Left kidney is penetrated; Bladder- healthy; Organs of
generation extrema and internal intact.
The injuries are anti-mortem in nature. The death was due to shock
and hemorrhage as a result of the injuries inflicted upon the
deceased. Ext.7 is PM report. Ext.7 (1) is the signature of Dr. K. M.
Das, which is known to PW-15. The PM report is countersigned by
the then Joint Director of Health Services, Dhubri
30. During cross examination, PW-15 Dr. S.M. Emdadullah has deposed
that the post mortem examination was conducted by Dr. K. M. Das. The name
of the father of the deceased is not mentioned in the P.M. report. The dead
body was dispatched on 22.01.1997, arrived at Morgue on 23.01.1997 and the
PM examination was done on 23.01.1997. The time of dispatch and the time of
arrival at Morgue are not mentioned in PM report. PW-15 Dr. S.M. Emdadullah
has deposed that as he did not conduct the P.M. examination, he can't say the
time of death of the deceased. PW-15 has deposed that the injury sustained by
Page No.# 19/35
the deceased cannot be caused by falling on hard substance. The post-mortem
examination report pointed out that the deceased sustained injury from sharp
weapon.
31. During the examination under Section 313 of the Code of Criminal
Procedure, 1973, the appellants have pleaded innocence and have denied the
truthfulness of the testimony of the witnesses for prosecution side. Though the
appellants during their examination under Section 313 of the Code of Criminal
Procedure, 1973, stated that they would be adducing evidence in defence,
however, no defence evidence was adduced by the appellants.
32. Mr. Z. Kamar, learned Senior Counsel for the appellants has
submitted that in the instant case, the evidence of PW-14 shows that on the
date of the incident itself, at about 06:45 PM, the VDP Secretary Durbaksh Seikh
informed the Officer-in-Charge of the Bagribari Police Station about the incident
over the phone and accordingly, G.D. Entry No. 453 dated 22.01.1997 was
made in the Police Station General Diary. It is also submitted by the learned
Senior Counsel for the appellants that as the investigation was also started on
the basis of the aforementioned G.D. Entry, the formal FIR which was lodged
later on by the PW-6 in this case which is exhibited as Exhibit 1, is hit by Section
162 of the Code of Criminal Procedure, 1973. Learned Senior Counsel for the
appellants has also submitted that as there was previous enmity between the
parties, the FIR lodged by the PW-6, which is exhibited as Exhibit-1, is a result
of an afterthought, and hence, the same may not be relied upon.
33. Learned Senior Counsel for the appellants has also submitted that
in the impugned judgment, the trial court had failed to mention any reason for
coming to the conclusion that the accused persons were guilty of the offence
alleged in prosecution of common object of the unlawful assembly of which they
Page No.# 20/35
were members. Learned Senior Counsel for the appellants has submitted that
the trial court, in the impugned judgment, has failed to show any material on
the basis of which common object amongst the accused persons could be
deduced. Learned Senior Counsel for the appellants has also submitted that in
the instant case charges, inter alia, under Section 149 of the Indian Penal Code
were framed against four accused persons including the present appellants.
However, a minimum of five persons is required for framing a charge under
Section 149 of the Indian Penal Code. Learned Senior Counsel for the appellants
has submitted that the prosecution side has failed to prove the membership of
the appellants of any unlawful assembly, hence, they could not have been
convicted for an offence under Section 302/149 of the Indian Penal Code.
However, learned Senior Counsel for the appellants has fairly submitted that in a
given case if it is proved that the accused persons have shared common
intention to commit murder of the deceased, they could be convicted under
Section 302 read with Section 34 of the Indian Penal Code even though the
charges were framed under Section 302 read with Section 149 of the Indian
Penal Code.
34. Learned Senior Counsel for the appellants has also submitted that
the prosecution side had examined only interested witnesses as the witnesses
who have implicated the appellants in this case are either related to the
deceased Anowar or were well known to him. Learned Senior Counsel for the
appellants has submitted that the eyewitness PW-3 Abu Bakker Sidique is the
brother of the deceased. The eyewitnesses PW-7 Sabeda Bewa and PW-9 Asma
Bibi are the wives of the deceased, whereas, eyewitness PW-8 is the daughter
of the deceased. Learned Senior Counsel for the appellants has also submitted
that the PW-11 Kapiluddin Ahmed was assaulted on the back, hence he could
Page No.# 21/35
not have identified the assailants of the deceased Anowar. Learned Senior
Counsel for the appellants has also submitted that while deposing before the
trial court, the witnesses have made general statement against all the accused
persons and no specific imputation against individual accused persons were
made by the witnesses. Learned Senior Counsel for the appellants has
submitted that the trial court erred in relying on the generalized statements of
interested witnesses to come to the finding of guilt of the present appellants.
35. Learned Senior Counsel for the appellants has also submitted that
though the Investigating Officer had drawn a sketch map of the place of
occurrence of the offence, however, the same was not exhibited during the trial
by any prosecution witness. It is also submitted that when the alleged incident
occurred, it was dark and therefore it is unlikely that the witnesses could have
identified the assailants. Learned Senior Counsel for the appellants has also
submitted that the prosecution side did not exhibit the seizure list of lamps, etc,
which were seized during the investigation, hence, it is submitted that the
learned trial court could not have arrived at the finding of guilt of the present
appellants.
36. Learned Senior Counsel for the appellants has submitted that
though a charge under Section 148 of the Indian Penal Code was framed
against the present appellants, however, no conviction was given under the said
section and therefore Section 149 of the Indian Penal Code could not have been
used against them in this case.
37. Learned Senior Counsel for the appellants has also submitted
that no dock identification of the appellants was made by the witnesses during
trial, hence, the identity of the appellants by the witnesses regarding their
involvement in the alleged offence is itself doubtful and the trial court had erred
Page No.# 22/35
in convicting the present appellants without them having been identified by the
witnesses in the court during trial.
38. Learned Senior Counsel for the appellants and cited following
rulings in support of submissions made by him: -
a. "Priyalal Barman vs State" reported in AIR 1970
Asm&Ngl 137.
b. "Chittarmal vs State of Rajasthan" reported in AIR 2003
SC 796.
c. "Mahadev Sharma & Others vs State of Bihar" reported in
AIR 1966 SC 302.
d. "Ajay Kumar Das vs State of Jharkhand" reported in
(2011)12 SCC 319.
e. "Malhu Yadav & Others vs State of Bihar" reported in
(2002) 5 SCC 724.
f. "Munna Chanda vs State of Assam" reported in 2006 Crl
LJ 1632.
39. On the other hand, Ms. B. Bhuyan, learned Additional Public
Prosecutor has submitted that the trial court has rightly convicted the present
appellants on the basis of the testimony of eyewitnesses and injured eyewitness
namely, PW-3, PW-7, PW-8, PW-9, PW-10 and PW-11. Learned Additional Public
Prosecutor has submitted that PW-7, PW-10 and PW-11 have specifically
deposed regarding the role attributed to appellants Zakir Hussain and Sopior
Rahman. Learned Additional Public Prosecutor has submitted that the
description of injuries on the deceased as well as on the injured witness i.e.,
PW-11, described by the witnesses corresponds to the injuries found by the
examining doctors on the injured as well as on the deceased. Learned Additional
Page No.# 23/35
Public Prosecutor has submitted that even when the motive or commission of
the offence is not clearly established, when the account of the injured
eyewitness is there and is well established, motive does not play an important
role. In support of her submission, learned Additional Public Prosecutor has
cited a ruling of the Apex Court in "Badru Ram & Others vs State of
Rajasthan" reported in (2015) 11 SCC 476.
40. Learned Additional Public Prosecutor has submitted that in the case
in hand, the PW-11 is an injured witness and his testimony must be given due
weightage being stamped witness as his presence at the place of occurrence
cannot be doubted. She has submitted that the testimony of such a witness is
generally considered to be very reliable and it is unlikely that he would spare the
actual assailant in order to falsely implicate someone else. In support of her
submission, learned Additional Public Prosecutor has cited a ruling of the Apex
Court in the case of "State of UP vs Naresh" reported in (2011)4 SCC 324.
41. Learned Additional Public Prosecutor has submitted that merely
because the witnesses are related to each other, the same may not be a ground
for disbelieving such witnesses. In support of her submission, learned Additional
Public Prosecutor has cited a ruling of the Apex Court in "Ravasaheb Gouda
vs State of Karnataka" reported in 2023 Live Law (SC) 225.
42. Learned Additional Public Prosecutor has submitted that in the
instant case, VDP Secretary Durbaksh Seikh informed the Officer-in-Charge of
the Bagribari Police Station, over phone, about the incident and accordingly,
G.D. Entry No. 453 dated 22.01.1997 was made in the Police Station General
Diary. She has submitted that the G.D. Entry which has been exhibited as
Exhibit-5 may be treated as an FIR and that the Investigating Officer committed
no error in initiating the investigation on the basis of the said G.D. Entry. In
Page No.# 24/35
support of her submission, learned Additional Public Prosecutor has cited the
ruling of the Apex Court in the case of "T.T. Anthony vs State of Kerela"
reported in (2001)6 SCC 181.
43. Learned Additional Public Prosecutor has submitted that as the
witnesses in this case have deposed after a long gap of time after the
commission of the alleged incident, there is bound to be certain inconsistencies
and discrepancies in the testimony of witnesses which is quite normal, however,
such minor contradictions and embellishments do not affect the core of the
prosecution case and should not be a basis for disbelieving the testimony of
witnesses. In support of her submission, learned Additional Public Prosecutor
has cited a ruling of the Apex Court in the case of "State of UP vs Naresh"
reported in (2011)4 SCC 324.
44. Learned Additional Public Prosecutor has submitted that all the
eye witnesses have deposed that the accused persons are known to them, and
therefore identifying such assailants even in the darkness may not have been
difficult for them. In support of her submission, learned Additional Public
Prosecutor has cited a ruling of the Apex Court in the case of "Bharosi vs
State of MP" reported in (2002)7 SCC 239. Learned Additional Public
Prosecutor has submitted that the learned trial court has correctly convicted the
present appellants, and their conviction and sentence does not warrant any
interference by this Court.
45. We have considered the submissions made by the learned
counsel for both the sides and have gone through the materials available on
record meticulously. We have also gone through the rulings cited by learned
counsel for both the sides in support of their submissions.
46. In T.T. Antony v. State of Kerala, (supra) the Apex Court
Page No.# 25/35
has observed as follows: -
"18. An information given under sub-section (1)
of Section 154 CrPC is commonly known as first
information report (FIR) though this term is not
used in the Code. It is a very important
document. And as its nickname suggests it is the
earliest and the first information of a cognizable
offence recorded by an officer in charge of a
police station. It sets the criminal law in motion
and marks the commencement of the
investigation which ends up with the formation
of opinion under Section 169 or 170 CrPC, as the
case may be, and forwarding of a police report
under Section 173 CrPC. It is quite possible and
it happens not infrequently that more
informations than one are given to a police
officer in charge of a police station in respect of
the same incident involving one or more than
one cognizable offences. In such a case he need
not enter every one of them in the station house
diary and this is implied in Section 154 CrPC.
Apart from a vague information by a phone call
or a cryptic telegram, the information first
entered in the station house diary, kept for this
purpose, by a police officer in charge of a police
station is the first information report -- FIR
postulated by Section 154 CrPC. All other
informations made orally or in writing after the
commencement of the investigation into the
cognizable offence disclosed from the facts
mentioned in the first information report and
entered in the station house diary by the police
officer or such other cognizable offences as may
Page No.# 26/35
come to his notice during the investigation, will
be statements falling under Section 162 CrPC. No
such information/statement can properly be
treated as an FIR and entered in the station
house diary again, as it would in effect be a
second FIR and the same cannot be in
conformity with the scheme of CrPC. Take a case
where an FIR mentions cognizable offence under
Section 307 or 326 IPC and the investigating
agency learns during the investigation or
receives fresh information that the victim died,
no fresh FIR under Section 302 IPC need be
registered which will be irregular; in such a case
alteration of the provision of law in the first FIR
is the proper course to adopt. Let us consider a
different situation in which H having killed W, his
wife, informs the police that she is killed by an
unknown person or knowing that W is killed by
his mother or sister, H owns up the responsibility
and during investigation the truth is detected; it
does not require filing of fresh FIR against H --
the real offender -- who can be arraigned in the
report under Section 173(2) or 173(8) CrPC, as
the case may be. It is of course permissible for
the investigating officer to send up a report to
the Magistrate concerned even earlier that
investigation is being directed against the person
suspected to be the accused."
47. In the instant case also, the evidence of PW-14, who is the
Investigating Officer in this case, shows that the VDP Secretary, Durbaksh Seikh,
informed the Officer-in-Charge of the Bagribari Police Station over phone about
the incident and accordingly, G.D. Entry No. 453 dated 22.01.1997 was made in
Page No.# 27/35
the Police Station General Diary. The extract of the said G.D. Entry has been
exhibited as Exhibit-5. Whereas, the FIR which is exhibited as Exhibit-1 is later
in point of time, and the Investigating Officer had already proceeded to the
place of occurrence and initiated the investigation on the basis of the said G.D.
Entry. Hence the G.D. Entry which is exhibited as Exhibit-5, in this case, may be
treated as the FIR. The Exhibit-5 specifically mentions that " accused Soleman,
Abdul Khalek along with six others killed Md. Anowar Hussain in his residence
itself at Sal bandha (Chotogirai) and hacked Md. Kapiluddin, r/o Fadiranijhar,
and caused severe injury to him". It is no more res integra that an FIR need not
be an encyclopaedia of the entire case. Hence, not naming other appellants
therein would not make such an FIR unreliable and the same may not be a
ground for discarding the entire prosecution case, when otherwise credible
evidence against the appellants is available on record.
48. As regards the framing of charges against the appellants under
Section 147, 148 and 149 of the Indian Penal Code is concerned, it is apparent
that for the commission of an offence under the aforementioned provisions, a
minimum of five persons is required. However, in the instant case, the trial court
had initially framed charges only against four accused persons. Out of the said
accused persons, accused Azibar Rahman was later on found to be a juvenile
and his case was forwarded to the Juvenile Justice Board. Though charges
under Section 147,148 and 149 of the Indian Penal Code could still be framed
against the accused persons, who were fewer in numbers than five, had there
been a clear mention in the memorandum of charges as to who were the other
members of the unlawful assembly and were not before the court. However, in
the instant case, there is no mention in the memorandum of the charges framed
against the appellants as to who were the other members of the unlawful
Page No.# 28/35
assembly of which the present appellants have been accused of being members.
Therefore, we are of the considered opinion that the trial court had erred in
framing charges under Section 147, 148 and 149 of the Indian Penal Code only
against four accused persons without mentioning therein as to who were the
other members of the unlawful assembly of which the appellants were accused
to be members.
49. Thus, it appears that in the instant case the charges under
Sections 147, 148 and 149 of the Indian Penal Code were not properly framed
against the present appellants. Hence they could not have been convicted under
the said provisions. However, the question remains as to whether the appellants
could still be convicted under Section 302 read with Section 34 of the Indian
Penal Code if the available evidence discloses the commission of such an
offence in furtherance of common intention of the appellants.
50. The Apex Court has observed in the case of "Chittarmal v.
State of Rajasthan," (supra) as follows: -
14. It is well settled by a catena of decisions
that Section 34 as well as Section 149 deal
with liability for constructive criminality i.e.
vicarious liability of a person for acts of others.
Both the sections deal with combinations of
persons who become punishable as sharers in
an offence. Thus they have a certain
resemblance and may to some extent overlap.
But a clear distinction is made out between
common intention and common object in that
common intention denotes action in concert
and necessarily postulates the existence of a
prearranged plan implying a prior meeting of
the minds, while common object does not
Page No.# 29/35
necessarily require proof of prior meeting of
minds or preconcert. Though there is a
substantial difference between the two
sections, they also to some extent overlap and
it is a question to be determined on the facts of
each case whether the charge under Section
149 overlaps the ground covered by Section
34. Thus, if several persons numbering five or
more, do an act and intend to do it, both
Section 34 and Section 149 may apply. If the
common object does not necessarily involve a
common intention, then the substitution of
Section 34 for Section 149 might result in
prejudice to the accused and ought not,
therefore, to be permitted. But if it does
involve a common intention then the
substitution of Section 34 for Section 149 must
be held to be a formal matter. Whether such
recourse can be had or not must depend on the
facts of each case. The non-applicability of
Section 149 is, therefore, no bar in convicting
the appellants under Section 302 read with
Section 34 IPC, if the evidence discloses
commission of an offence in furtherance of the
common intention of them all. (See Barendra
Kumar Ghosh v. King Emperor [AIR 1925 PC 1 :
26 Cri LJ 431] , Mannam Venkatadari v. State
of A.P. [(1971) 3 SCC 254 : 1971 SCC (Cri)
479 : AIR 1971 SC 1467] , Nethala
Pothuraju v. State of A.P. [(1992) 1 SCC 49 :
1992 SCC (Cri) 20 : AIR 1991 SC 2214]
and Ram Tahal v. State of U.P. [(1972) 1 SCC
136 : 1972 SCC (Cri) 80 : AIR 1972 SC 254] )
51. In the instant case, though no mention about Section 34 of the
Page No.# 30/35
Indian Penal Code is there in the memorandum of charges, however, specific
charge under Section 302 of the Indian Penal Code was framed against all the
appellants. In "Malhu Yadav & Others vs State of Bihar" (supra) the Apex
Court has observed that since the existence of common intention amongst the
accused persons is established from the surrounding circumstances and from
their conduct on the spot, the absence of charge under Section 34 of the Indian
Penal Code against the accused persons would not make any difference. It was
observed that failure to charge the accused persons under Section 34 of the
Indian Penal Code, who stood charged under Section 149 of the Indian Penal
Code, would not result in any prejudice to them. The accused persons can
therefore, be convicted for the major offence read with Section 34 of the Indian
Penal Code.
52. In the instant case, all the eye witnesses, namely the PW-3, PW-
7, PW-8, PW-9, PW-10 and PW-11 have deposed during the trial that they know
the accused persons and they have seen the accused persons, including the
present appellants, assaulting the deceased Anowar. The injured eye witness,
namely PW-11 Md. Kapiluddin has categorically deposed that the accused
persons brought the deceased Anowar out of his house and assaulted him and
thereby killed him. He has specifically stated that Soleman hacked the neck of
Anowar and other accused persons assaulted him with lathi when he fell down.
During cross-examination also, he has stated that he had witnessed the incident
in an injured condition. This testimony of the injured witness PW-11 could not
be demolished during his cross-examination. The Apex Court has observed in
the case of "State of U.P. v. Naresh", (supra) as follows: -
27. The evidence of an injured witness must be
given due weightage being a stamped witness,
thus, his presence cannot be doubted. His
Page No.# 31/35
statement is generally considered to be very
reliable and it is unlikely that he has spared the
actual assailant in order to falsely implicate
someone else. The testimony of an injured witness
has its own relevancy and efficacy as he has
sustained injuries at the time and place of
occurrence and this lends support to his testimony
that he was present during the occurrence. Thus,
the testimony of an injured witness is accorded a
special status in law. The witness would not like or
want to let his actual assailant go unpunished
merely to implicate a third person falsely for the
commission of the offence. Thus, the evidence of
the injured witness should be relied upon unless
there are grounds for the rejection of his evidence
on the basis of major contradictions and
discrepancies therein. (Vide Jarnail Singh v. State
of Punjab [(2009) 9 SCC 719: (2010) 1 SCC (Cri)
107], Balraje v. State of Maharashtra [(2010) 6
SCC 673: (2010) 3 SCC (Cri) 211] and Abdul
Sayeed v. State of M.P. [(2010) 10 SCC 259:
(2010) 3 SCC (Cri) 1262])
In the instant case also, we do not find any justification for discarding the
testimony of PW-11, who is an injured eyewitness. There is no doubt regarding
his presence at the place of occurrence when the alleged incident had
happened as he himself sustained injuries during the assault by accused
Azibar(who was found to be juvenile later on) at the time of the incident.
53. From the testimony of PW-15, which has been discussed
hereinbefore in paragraph number 29 of this judgment, it is clear that the
deceased Anowar died due to shock and haemorrhage as a result of injuries
inflicted upon him. The number of multiple injuries inflicted upon the deceased
Page No.# 32/35
clearly shows that the accused persons, including the present appellants,
intended to cause the death of Anowar.
54. As regards the conviction of the present appellants under
Section 448 of the Indian Penal Code is concerned, we have seen hereinbefore
that almost all the prosecution witnesses have deposed that the accused
persons entered the house of the deceased and dragged him out from his house
and thereafter assaulted him. The said testimony of the prosecution witnesses
remained uncontroverted. Hence, we do not find any good ground to interfere
with the finding of conviction of the present appellants under Section 448 of the
Indian Penal Code. However, the conviction under Section 448 is not with the
aid of Section 149 of the Indian Penal Code but with the aid of Section 34 of the
Indian Penal Code.
55. As regards the conviction of the present appellants under
Section 326 of the Indian Penal Code is concerned, the injured victim, namely,
Kapiluddin Ahmed while deposing as PW-11 has stated that he was assaulted
with a dao on the backside of his head by the accused Azibar(who was later on
found to be a juvenile). However, PW-11 has not implicated the present
appellants in causing grievous injury to him and it has been already discussed in
the foregoing paragraphs that in the instant case, the trial court had erred in
framing the charges against four numbers of accused persons under Section
149 of the Indian Penal Code. Hence, the present appellants could not have
been convicted under Section 326 of the Indian Penal Code with the help of
Section 149 of the Indian Penal Code. Accordingly, we set aside the conviction
of the present appellants under Section 326 of the Indian penal Code.
56. The submission of learned Senior Counsel for the appellants
that the accused persons were not identified in the dock by the witnesses does
Page No.# 33/35
not appear to be factually correct as only three accused persons (present
appellants) faced the trial and all the eyewitnesses have categorically stated
that the accused persons are known to them. As the appellants were known to
the witnesses, they could identify them even when it was dark at the time of the
incident. Hence, we find no force in the submission of learned senior counsel for
the appellants that the witnesses have failed to identify the assailants.
57. Moreover, as regards the submission of learned Senior Counsel
for the appellants that some of the other persons, who according to the
witnesses were present at the place of occurrence, were not examined as
witnesses in this case, we are of the considered opinion that mere non-
examination of such witnesses would not make the prosecution case weak if the
testimony of available witnesses is otherwise reliable. The Apex Court, in this
context has observed in the case of "Raja v. State of Haryana", reported in
(2015) 11 SCC 43as follows :-
13. It is well settled in law that non-examination of
a material witness is not a mathematical formula for
discarding the weight of the testimony available on
record, if the same is natural, trustworthy and
convincing (see State of H.P. v. Gian Chand [State of
H.P. v. Gian Chand, (2001) 6 SCC 71 : 2001 SCC
(Cri) 980] . That apart, he was not such a witness
who alone was the competent witness to depose
about a fact and his non-examination would really
destroy the version of the prosecution.
In the instant case, apart from the injured witness, the prosecution side
also examined the family members of the deceased who would have normally
been present in the house of the deceased at the time when the incident had
occurred. Hence, non-examination of other witnesses who were also present at
Page No.# 34/35
the place of occurrence of the incident at that time, by itself, would not make
the prosecution case weak.
58. As regards non-recovery of weapon of assault in this case, we
are of the considered opinion that though such non-recovery is a lacuna in the
investigation, however, in view of unimpeachable ocular evidence corroborated
by medical evidence, mere non-recovery of weapon of offence during
investigation, by itself, does not affect the prosecution case.
59. Thus, for the reasons mentioned in the foregoing paragraphs
we are of the considered opinion that the available evidence on record, as
discussed hereinbefore, shows that the present appellants, in furtherance of
their common intention, dragged the deceased Anowar out of his house and
have assaulted him and thereby caused his death, hence, the conviction of the
present appellants under Section 302 read with Section 149 of the Indian Penal
Code is converted into conviction under Section 302 of the Indian Penal Code
read with Section 34 of the Indian Penal Code. Further, the conviction of the
present appellants under Section 326 of the Indian Penal Code is set aside for
the reasons mentioned hereinbefore. Further, the conviction of the present
appellants under Section 448 of the Indian Penal Code read with Section 149 of
the Indian Penal Code is also converted into conviction under Section 448 of the
Indian Penal Code read with Section 34 of the Indian Penal Code.
60. Accordingly, the appellants named hereinabove are sentenced
to undergo rigorous imprisonment for 3 months under Section 448/34 of the
Indian Penal Code. They are also sentenced to undergo rigorous imprisonment
for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to
undergo further rigorous imprisonment for 3 months for committing the offence
under Section 302/34 of the Indian Penal Code. The sentences imposed on the
Page No.# 35/35
appellants shall run concurrently. The impugned judgment stands modified to
the extent indicated hereinabove.
61. This appeal is accordingly disposed of.
62. Send back the LCR, along with a copy of this judgment.
JUDGE JUDGE
Comparing Assistant
