Gauhati High Court
Crl.A./229/2023 on 28 August, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
GAHC010139822023
2025:GAU-AS:11504-DB
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL. A. NO.229 OF 2023
1. Majibur Rahman,
S/o- Anab Ali
R/o- village Gerjai Pam,
Mouza- Garubat, P.S.- Kachua,
District- Nagaon, Assam.
2. Md. Iman Hussain,
S/o- Late Akbor Ali
R/o- village Gerjai Pam,
Mouza- Garubat, P.S.- Kachua,
District- Nagaon, Assam.
3. Sahjahan Ali
S/o- Amir Hussain
R/o- village Gerjai Pam,
Mouza- Garubat, P.S.- Kachua,
District- Nagaon, Assam.
.......Appellants
-Versus-
1. The State of Assam,
Represented by the Public
Prosecutor, Assam.
2. Musstt. Nazira Khatun,
W/o- Late Ali Hussain,
R/o- village Gerjai Pam,
Page 1 of 16
Mouza- Garubat, P.S.- Kachua,
District- Nagaon, Assam,
Pin- 782426.
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellants : Mr. J. C. Gogoi, Advocate.
For the Respondents : Ms. B. Bhuyan, Senior Advocate/
Additional Public Prosecutor, Assam
assisted by Ms. R. Das, Advocate.
Date of Hearing : 21.08.2025.
Date of Judgment : 28.08.2025.
JUDGMENT & ORDER (CAV)
(Kaushik Goswami, J)
Heard Mr. J. C. Gogoi, learned counsel, appearing
for the appellants. Also heard Ms. B. Bhuyan, learned
Senior Advocate/Additional Public Prosecutor, Assam,
assisted by Ms. R. Das, learned counsel, appearing for the
respondents.
2. The instant criminal appeal is presented against
the judgment & order dated 23.05.2023 passed by the
learned Additional Sessions Judge, No.3, Nagaon,
Assam, (hereinafter referred to as the "trial court") in
Sessions (T-1) Case No. 36(N)/2015 whereby the
accused/appellants were convicted under Section 302/34 of
the Indian Penal Code (hereinafter referred to as the
"IPC") and sentenced thereof to suffer life imprisonment
and to pay a fine of Rs.10,000/- each and, in default of
payment of the fine to suffer rigorous imprisonment for a
period of 1 (one) year under Section 302 of the IPC.
3. The brief facts of the case are that the PW-
3/informant lodged an F.I.R. on 21.06.2013 stating, inter
alia, that on 20.06.2013 the accused/appellants, i.e., her
stepbrothers-in-law, by dragging her husband, Ali Hussain
(hereinafter referred to as the "deceased"), to their
courtyard, killed him by assaulting him with a spear, pieces
of wood, and dao. It is further alleged that the
accused/appellants also injured her mother-in-law, i.e.,
PW-4. Accordingly, an F.I.R. was registered, and upon
completion of investigation, the Investigating Officer, i.e.,
PW-10, submitted a charge-sheet against the
accused/appellants and one co-accused Amir Hussain,
under Section 302/34 of the IPC. Thereafter, the learned
committal Magistrate court, upon appearance of the
accused/appellants and the other co-accused, committed
the case to the Court of Sessions, Nagaon, and was further
pleased to abate the case of the co-accused Amir Hussain.
Thereafter, the learned trial court formally charged the
accused/appellants for the offence punishable under
Section 302/34 of the IPC, for which they pleaded not
guilty and claimed to be tried.
4. During the course of the trial, the prosecution
examined 10 (ten) witnesses, including the informant and
the Investigating Officer, and after cross-examination and
closure of the evidence of the prosecution, all the
incriminating circumstances were put to the
accused/appellants under Section 313 of the Code of
Criminal Procedure (hereinafter referred to as the
"Cr.P.C.,") which they generally denied.
5. Thereafter, the trial court, upon considering the
evidence and hearing the parties, convicted the
accused/appellants and sentenced them under the
impugned judgment & order. Situated thus, the present
appeal has been preferred.
6. Mr. J. C. Gogoi, learned counsel appearing for the
accused/appellants, submits that the conviction of the trial
court is based on the testimonies of interested
eyewitnesses, which have not been corroborated by
independent witnesses, and the impugned judgment &
order is erroneous. He further submits that the alleged
weapon not having been sent for forensic examination, the
impugned conviction and sentence is fatal. In support of
the aforesaid submissions, he relies upon the following
decisions of the Apex Court: -
(i) The State of Rajasthan v. Teja Singh and Ors.,
reported in AIR 2001 SCC 990.
(ii) Hem Raj & Ors., v. State of Haryana, reported in
AIR 2005 SC 2110,
(iii) Mathura Yadav alias Mathura Mahato and Ors.,
v. State of Bihar, reported in 2002 CRL. L. J 3538,
(iv) State of Rajasthan vs. Wakteng, reported in AIR
2007 SC 2020.
7. Per contra, Ms. B. Bhuyan, learned Senior
Advocate/Additional Public Prosecutor, Assam, submits that
the impugned conviction is based on the testimonies of the
eyewitnesses, whose presence in the place of occurrence
cannot be doubted, and their evidence, being consistent, is
of a reliable, trustworthy, and credible nature. She
accordingly submits that the impugned judgment &
sentence warrants no interference from this appellate
court.
8. We have given our prudent consideration to the
arguments advanced by the learned counsel appearing for
both the parties and have carefully examined the material
available on record. We have also considered the case laws
cited at the bar.
9. PW-1 and PW-2 deposed that they got
information over the phone from a co-villager that the
deceased was killed in the courtyard of the
accused/appellant Iman Hussain, and on reaching the
place of occurrence along with VDP Nayak, they saw that
the deceased was lying in the courtyard of the said co-
accused/appellant with several injuries, including a cut
injury in his legs and neck, and was smeared with blood.
They further deposed that except for the wife/PW-3 of the
said co-accused/appellant, nobody was there in the house,
but there was a gathering of several persons. They further
deposed that they heard from the people that the
accused/appellants murdered the deceased by cutting him.
They further deposed that the deceased and the
accused/appellants were brothers. They further deposed
that later on they informed the police, and the police
accordingly investigated and recorded their statements.
10. PW-1 in his cross-examination clarified that he
arrived at the place of occurrence after the incident had
taken place and saw the dead body of the deceased there.
He clarified that he told police that he was informed by
Sirajul over the phone that the deceased was lying dead in
the courtyard of accused Iman Hussain with injuries on his
body. He clarified that he told police that the deceased's
legs and neck were cut and he was found smeared with
blood. PW-2 in his cross-examination clarified that police
did not question him about anything about the incident.
11. PW-3, who is the wife of the deceased, deposed
that the accused persons are her neighbours, and on the
day of the incident when she was at her father's house,
PW-4 (mother-in-law) and PW-5 (daughter) informed her
that the deceased was beaten and hacked with a dao by
the accused/appellants in the courtyard of one of the co-
accused/appellant, i.e., Iman Hussain, and that
succumbing to the same, her husband died. She further
deposed that she immediately came to see the deceased,
and at that time police came and took the dead body of
the deceased for postmortem examination. She further
deposed that when she saw the deceased's body, she saw
injuries on his left hand, neck, and legs. She further
deposed that she lodged the F.I.R. on the next day.
12. During cross-examination she clarified that she
did not witness the incident, and that she forgot the date
of lodging the F.I.R.
13. PW-4, i.e., the mother of the deceased, and PW-
5, i.e., the daughter of the deceased, are the two
eyewitnesses to the incident. PW-4 deposed that on the
day of the occurrence at 6 pm on the road in front of her
house, a quarrel took place between the deceased and the
accused/appellants after he returned from the market,
which was also witnessed by PW-5 along with another
granddaughter. She further deposed that at that time the
accused/appellant Sahjahan and Majibur caught the
deceased and tied him with rope and pushed him down
onto the road. She further deposed that the
accused/appellant Iman Hussain beat the deceased on his
head with a wooden log and thereafter accused/appellants
Amir Hussain, Majibur, and Sahjahan beat him with their
hands. She further deposed that when the deceased
prayed for mercy, she immediately went to cover him by
falling on his body. Then the accused/appellant Shahjahan,
pulled and fell her down on the ground. She further
deposed that at that time, the accused/appellant Iman
Hussain assaulted the deceased with a dao. She further
deposed that when she wanted to go to the police station,
the accused/appellant Shahjahan pulled and brought her
back. She further deposed that accused/appellants
dragged the deceased to the courtyard of the
accused/appellant Iman Ali and at that time the deceased
died. She further deposed that she immediately went with
PW-5 to inform PW-3. She further deposed that she saw
three cut injuries on the head of the deceased including on
his hand and legs, and his whole body was smeared with
blood.
14. During cross-examination, PW-4 clarified that the
accused/appellants are sons of her co-wife, and prior to
the incident, there was no quarrel between them. She
further clarified that she told police that at the time of the
incident, the deceased had arrived from the market and
got engaged in a quarrel with the accused/appellants on
the road, and at that time her granddaughters were with
her. She further clarified that she told police that
accused/appellant Sahjahan and Majibur tied the deceased
with a rope and pushed him onto the ground, and then
Iman assaulted the deceased with a wooden baton, and
then the rest of the accused/appellants assaulted the
deceased with their hands. She further clarified that she
told police that when the deceased asked the
accused/appellants not to assault him, she threw herself
over the deceased to save him, and then Sahjahan pulled
her away from there and also restrained her from going to
the police station by pulling her. She further clarified that
she told police that she saw the dead body of the deceased
in the courtyard of the accused/appellant's house. She
further clarified that she told police that there were cut
injuries on the head, hands and legs of the deceased, and
blood was oozing out.
15. PW-5 similarly deposed that on the day of
occurrence, the accused/appellants abused her father on
the road and caught hold of him when he returned from
the market, and at that time, she along with PW-4 and her
sisters were present. She further deposed that the
accused/appellants tied the deceased, and
accused/appellant Iman Hussain assaulted him with a
wooden log and a dao. She further deposed that the other
accused/appellants assaulted her father with their hands.
She further deposed that though she and PW-4 wanted to
go to the police station, the accused/appellant Sahjahan
restrained them. She further deposed that the deceased
was dragged to the courtyard of accused/appellant Iman
Hussain; however, at that time, he was already dead.
16. During cross-examination, she clarified that on
the following day she went to the police station with PW-3
and PW-4, where she was questioned by the police about
the incident. She clarified that she told police that when
the accused persons quarreled with her father, she, her
sisters, and PW-4 were nearby. She further clarified that
she told police that the accused/appellants had tied her
father, and accused Iman had assaulted her father with a
baton, and when she and PW-4 tried to go to the police
station, Sahjahan brought them back. She clarified that she
told police that when they returned, they saw their father
lying in the courtyard of accused/appellant Iman. She
clarified that she told police that she went to inform PW-3
after seeing cut injuries on her father's neck, head, hands,
and legs.
17. PW-6 and PW-7 are the seizure witnesses to an
iron rod which was seized from the side of the courtyard of
accused/appellant Iman Hussain, and exhibited as Exhbit-
2.
18. PW-8 is the doctor who conducted post-mortem
on the deceased. He deposed that "there was a deep
lacerated injury over back of head with exposed brain. There
was a lacerated injury right side of neck size 10 cm x 3cm x
3cm. Another lacerated injury on the left side of the neck which
8 cm x 3cm x 3 shoulder cm. Deep lacerated injury over right
shoulder which is 10 cm x 3cm x 3 cm. There was fracture of
the occipital bone of the skull with lacerated and exposed brain
matter. There were fracture of the humerus and the scapula.
He further deposed that in his opinion, the
deceased died due to shock and hemorrhage as a result of
the injury sustained.
19. PW-9 is the second Investigating Officer who
deposed that upon the case being endorsed to him for
further investigation, he completed the investigation and
thereafter submitted charge-sheet against the
accused/appellants and another co-accused Amir Hussain.
His cross-examination was declined.
20. PW-10 is the Investigating Officer, who deposed
that on 21.06.2013, the jurisdictional police station, upon
receiving information over the phone that there was an
assault, made a G.D. Entry, and thereafter he was
entrusted to investigate the case. He further deposed that
he accordingly went to the place of occurrence and found
the dead body of the deceased stained with blood all over
his body and cut injuries on his body. He further deposed
that he seized one iron rod of 3.5 feet in length. He further
deposed that though they searched for the
accused/appellants, they could not be apprehended. He
further deposed that he recorded the statement of the
witnesses, including the informant/PW-3 and the two
eyewitnesses, i.e., PW-4 and PW-5. He further deposed
that the accused/appellants Iman Hussain and Amir
Hussain surrendered themselves at the police station, and
he accordingly recorded their statements and thereafter
arrested them.
21. During cross-examination, he clarified that PW-4
did not state before him that during examination under
Section 161 of the Cr.P.C., her other two granddaughters,
i.e., Banisa and Rubina were also present with her at the
place of occurrence. He further clarified that PW-4, during
her 161 statement, stated to him that accused/appellants
tied the deceased with rope.
22. Upon closure of the prosecution evidence, the
accused/appellants, in their examination under Section 313
of the Cr.P.C., generally denied all the incriminating
evidence and chose not to adduce any evidence in their
defence.
23. It is clear from the above that the case of the
prosecution is based on the eyewitnesses of the said two
witnesses, i.e., PW-4 (mother) and PW-5 (daughter) of the
deceased. Undoubtedly, the two witnesses who have
witnessed the incident are related to the deceased.
However, they need not be branded as liars in toto merely
because they are related witnesses. On the contrary, such
witnesses, being natural witnesses present at the scene,
are less likely to spare the real culprit and falsely implicate
another. The Apex Court in a catena of decisions has held
that the evidence of a related witness, if found credible
and trustworthy, can form the sole basis for conviction.
24. In the case of State of U.P. v. Noorie alias
Noor Jahan and Ors., reported in (1996) 9 SCC 104,
the Apex Court has held that while assessing and
evaluating the credibility of the evidence of eyewitnesses,
the court must adhere to two principles, namely, whether
in the circumstances of the case it was possible for the
eyewitness to be present at the scene and whether there is
anything inherently improbable or unreliable. The relevant
paragraph from the aforesaid judgment is reproduced
hereunder for ready reference: -
"7. The High Court having acquitted the accused
persons on appreciation of the evidence, we have
ourselves scrutinised the evidence of PWs 1, 2 and
3. The conclusion is irresistible that their evidence
on material particulars have been brushed aside
by the High Court by entering in the realm of
conjecture and fanciful speculation without even
discussing the evidence more particularly the
evidence relating to the basic prosecution case.
While assessing and evaluating the evidence of
eyewitnesses the court must adhere to two
principles, namely, whether in the circumstances of
the case it was possible for the eyewitness to be
present at the scene and whether there is anything
inherently improbable or unreliable. The High Court
in our opinion has failed to observe the aforesaid
principles and in fact has misappreciated the
evidence which has caused gross miscarriage of
justice. Credibility of a witness has to be decided
by referring to his evidence and finding out how he
has fared in cross-examination and what
impression is created by his evidence taken in
other context of the case and not by entering into
the realm of conjecture and speculation. On
scrutinising the evidence of PWs 1, 2 and 3 we find
they are consistent with one another so far as the
place of occurrence, the manner of assault, the
weapon of assault used by the accused persons,
the fact of dragging of the dead body of the
deceased from the place to the grove is concerned
and nothing has been brought out in their cross-
examination to impeach their testimony. The
aforesaid oral evidence fully corroborates the
medical evidence. In that view of the matter we
unhesitatingly come to the conclusion that the
prosecution has been able to establish the charge
against the accused persons and the High Court
committed error in acquitting the three
respondents, namely, Inder Dutt, Raghu Raj and
Bikram. In the aforesaid premises the order of
acquittal passed by the High Court so far as
respondent Noorie is concerned is confirmed but
the order of acquittal so far as accused Inder Dutt,
Raghu Raj and Bikram is concerned is set aside
and their conviction and sentences passed by the
learned Additional Sessions Judge are confirmed.
The appeal is allowed in part. Respondents Inder
Dutt, Raghu Raj and Bikram are directed to
surrender to serve the balance period of sentence.
Their bail bonds stand cancelled."
25. Reference in this regard is also made to the
decision of the Apex Court in the case of Dayal Singh
and Ors., v. State of Uttaranchal, reported in (2012) 8
SCC 263. The relevant paragraph of the aforesaid
judgment is reproduced hereunder for ready reference: -
"14. This Court has repeatedly held that an
eyewitness version cannot be discarded by the
court merely on the ground that such eyewitness
happened to be a relation or friend of the
deceased. The concept of interested witness
essentially must carry with it the element of
unfairness and undue intention to falsely implicate
the accused. It is only when these elements are
present, and statement of the witness is unworthy
of credence that the court would examine the
possibility of discarding such statements. But
where the presence of the eyewitnesses is proved
to be natural and their statements are nothing but
truthful disclosure of actual facts leading to the
occurrence and the occurrence itself, it will not be
permissible for the court to discard the statements
of such related or friendly witness."
26. Therefore, it is the duty of the court to first
decide the credibility of a related eyewitness before
throwing out the testimony of such witness. In order to
decide such credibility, it is essential for the court to refer
to the evidence of such witness and find out, amongst
others, whether such witness has consistently remained
intact on material points from the facts stated earlier to the
police either in F.I.R. or case diary statements and is also
consistent in all material details as well as on vital points
and how the witness has fared in cross-examination and as
to what impression is created by his evidence taken in
context of the other evidence without entering into the
realm of conjecture and speculation. In short, what is
required is a careful and cautious scrutiny, which in the
present case has been undertaken by the trial court as well
as by this court
27. Viewed thus, from this angle, we find that PW-4
and PW-5 are consistent with one another as regards the
place of occurrence, involvement of the
accused/appellants, the manner of assault, the weapon of
assault used by the accused persons, the fact of dragging
of the dead body of the deceased to the courtyard of the
accused/appellant Iman Hussain, their presence in the
place of occurrence, informing the PW-3 by them, and
nothing has been brought out in their cross-examination to
impeach their testimonies. Furthermore, from a perusal of
the statement of the PW-4 and PW-5 recorded by the
Investigating Officer under Section 161 of the Cr.P.C., it is
apparent that they have also remained intact on material
points right from the beginning till the end of the trial. That
apart, the aforesaid testimonies of the two eyewitnesses
are also fully corroborated by the PW-3 and the medical
evidence. In the context of the facts of the case vis-à-vis
the other evidence on record, neither the presence of PW-
4 and PW-5 in the place of occurrence can be doubted nor
is there anything inherently improbable or unreliable.
Hence, the testimonies of PW-4 and PW-5 are wholly
trustworthy and credible. That being so, it shall not be
justifiable to discard the depositions of the aforesaid two
eyewitnesses. Hence, the charge against the
accused/appellants has been established by the
prosecution beyond reasonable doubt.
28. Consequently, we do not find any infirmity in the
judgment & order dated 23.05.2023 rendered by the trial
court. The criminal appeal, being devoid of any merit, is
hereby dismissed. The conviction and sentence awarded to
the accused/appellants under Section 302/34 of the IPC
are upheld.
29. The accused/appellants shall continue to undergo
the sentence as awarded by the trial court.
30. Ordered accordingly.
31. Accordingly, the criminal appeal stands disposed
of.
32. Return the trial court record (TCR).
JUDGE JUDGE
Comparing Assistant
