Gauhati High Court
Makshed Ali @ Muksed Ali vs The State Of Assam And Anr on 25 March, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/18
GAHC010026132020
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./78/2020
MAKSHED ALI @ MUKSED ALI
S/O- SATAR ALI, R/O- VILL.- AHATA BAKRIKUCHI, P.O. JOYSAGAR, P.S.
MUKALMUA, DIST.- NALBARI, ASSAM, PIN- 781126.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE P.P., ASSAM.
2:SAMSUL HAQUE
S/O- LATE ABDUL MALEK
R/O- VILL.- AHATA BAKRIKUCHI
P.O. JOYSAGAR
P.S. MUKALMUA
DIST.- NALBARI
ASSAM
PIN- 781126
Advocate for the Petitioner : MR A DASGUPTA, J U AHMED,MR. R K MUSHAHARY,MR S R
NAWAZ,MR S A REEYAZ
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE KAKHETO SEMA
For the Appellant : Shri A Dasgupta, Sr. Advocate &
Ms. B Das, Advocate.
Page No.# 2/18
For the Respondents : Ms. A Begum, Addl. PP, Assam.
Dates of Hearing : 05.03.2025 & 07.03.2025.
Date of Judgment : 25.03.2025.
JUDGMENT & ORDER
The instant appeal has been filed under Section 374(2) Cr.PC, 1973, against the
judgment & order dated 05/12/2019 passed by the learned Sessions Judge, Nalbari, in
Session Case No. 40/2016 corresponding to G.R Case No. 26/2016 and Mukalmua P.S
Case No. 02/2016 u/s 120(B)/302 IPC by which the appellant was convicted and
sentenced to undergo Rigorous Imprisonment (RI) for life and to pay fine of Rs.
30,000/- only, in default, RI for 6 months.
2. The criminal law was set in motion by lodging the Ejahar dated 05/01/2016 by
the PW-1 who is the father of the deceased Md. Baharul Islam. The Ejahar states that
on 04/01/2016 at around 10:20 P.M when the deceased was coming towards his
house from Saulkhowa Chowk, the appellant/convict, on the instigation of five other
accused persons, dragged the deceased from the road towards the east of the
informant's residence and stabbed the deceased with a sharp weapon and thereafter,
fled from the place of occurrence leaving behind two mobile phones, the weapon and
a chadar. The Ejahar also states that when the deceased cried out, Md. Sabedjal Ali,
the neighbour of the informant rushed to the place of occurrence and saw the
appellant. The informant also rushed to the place of occurrence and immediately took
the deceased to Mukalmua Health Centre from where he was referred and brought to
Bhangagarh, Guwahati, where the deceased succumbed to his injuries. Based on the
Ejahar, the formal FIR was registered and the investigation was conducted. During the
investigation of the case, no evidence of involvement of the accused No. 2, 3, 4, 5 & 6
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could be established and accordingly, the Investigating Officer (IO) prayed for their
discharge from the criminal liability of the case. On completion of the investigation,
the charges were laid against the appellant u/s 302 IPC.
3. The charges were accordingly framed against the appellant and the appellant
having pleaded not guilty, the trial commenced. During the trial of the case, the
prosecution adduced evidence through 17 nos. of witnesses.
4. PW1 is the informant and the father of the deceased who had deposed that on
04/01/2016 at about 10:30 P.M, he and his wife, had heard the deceased crying and
uttering "Mok marile, mok marile". He immediately ran to the place and noticed the
deceased walking behind the appellant and uttering " Mok marile, mok marile". He
noticed the appellant entering the compound of the house of his niece and further
noticed the appellant stabbing the deceased with a pointed weapon in the courtyard
of his niece. He has deposed that some people including Sabedjal arrived at the place
and when Sabedjal tried to catch hold of the appellant, the appellant also threatened
to kill Sabedjal with the same weapon. He has also deposed that the deceased fell
down after receiving the blow from the sharp weapon and Sahjahan Ali, Hanif and
Sabedjal poured water on the head of the deceased. He has also deposed that the
deceased asked him to return home as the latter's wife was alone in the house. He
has further deposed that the deceased was brought to GMCH by Sahjahan and others
but the next morning at about 5:00 A.M he got the information that the deceased
succumbed to the injuries. PW1 has proved the FIR as Exhibit-1 and the Seizure Lists
as Exhibits-2 & 3. In his cross-examination, he denied the suggestion that he did not
disclose the relevant facts before the police. He also reiterated of noticing the
appellant inflicting the injury on his deceased son whereafter he had fall under.
5. PW2 is an eye witness to the incident who had deposed that on the fateful
evening, he had gone to watch a circus in which the deceased had also gone. After
the circus was over at about 10 p.m., he had offered the deceased a ride by his bike
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which was refused. Thereafter when he was about to reach the house of the
deceased, he saw the appellant in front of Abdul's shop and heard the deceased
repeatedly screaming 'I have been assaulted'. He has deposed that he saw the
appellant stabbing the deceased in his chest with a pointed weapon under the
illumination of light coming from Abdul's shop and the appellant thereafter fleeing
followed by the deceased. PW-2 has also deposed that he ran after the deceased and
saw the appellant entered the compound of Fazal where the deceased grabbed the
appellant but the appellant again stabbed the deceased under his ear with a pointed
weapon. PW2 had deposed that he caught hold of the appellant but the appellant told
PW2 to leave him or else he will also be stabbed. He also deposed that when he
released the appellant, the appellant threw the iron weapon on the ground and fled.
PW-2 has also deposed that Fazal's wife and Hanif poured water on the head of the
deceased. PW2 thereafter called 108 ambulance and took the deceased to the main
road after which the PW2 along with two other persons took the deceased to
Mukalmua Hospital from where he was referred to GMCH. PW2 has also deposed that
he along with PW1/informant went to the Police station where PW1 lodged the ejahar.
PW2 has also deposed that immediately after the incident he had picked up the sharp
weapon left by the appellant at Fazal's premises and handed over the same to his
father Mumtaz Ali (PW10) and the Police seized the same from his father. PW2 has
proved his signature in the seizure list which is Exhibit2.
In the cross-examination, PW2 expressed his ignorance regarding any case filed
by the brother of the appellant. He further clarified that he could see the appellant in
the flash of the headlight of his motor cycle. He also deposed regarding recording of
his statement under Section 164 of the Cr.PC.
6. PW3 is a co-villager and had deposed that the deceased had made a dying
declaration before him. He deposed that on 04/01/2016 at around 10:20 P.M he heard
the deceased shouting repeatedly "I was assaulted". On reaching the place he saw
Samsul, Sabedjal, Sahjahan, Abdul and Hanif pouring water on the deceased.
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In the cross-examination, he had denied that he had gave false evidence as
being related to the deceased family.
7. PW4 is the younger sister of the deceased and an eye-witness. She deposed that
on hearing the scream of the deceased she came out from her home and saw the
appellant stabbing the deceased near a shop which is close to her house. PW4 called
her father/informant and rushed to the place and saw the appellant fleeing followed
by the deceased. She had deposed that both the appellant and the deceased entered
the compound of the appellant's cousin sister where the deceased felt down and
people poured water on the head of the deceased.
In the cross-examination, PW4 has reiterated that she had stated before the
Police that she had witnessed the appellant assaulting the deceased and there was
light in the shop near which the incident occurred.
8. PW5 is a co-villager who had deposed that on the day of the incident while he
was returning after enjoying circus he heard some uttering "Mok marile, mok marile
dhar" which was coming from a short distance from the house of the deceased. He
had deposed that from the light of his motorcycle he saw the appellant running away
followed by the deceased. He got down from the bike and followed them. The
appellant entered the house of Fazal and it was then the PW5 notice the deceased
falling down in the courtyard of Fazal. PW5 had deposed that he requested the family
members of Fazal to bring water and poured the same on the head of the deceased.
PW-5 had deposed that he noticed injury on the chest and face of the deceased.
In cross-examination, the PW5 has reiterated the statements made in the
examination-in-chief.
9. PW6 is a witness to the dying declaration made by the deceased who had
deposed that at about 10:00 P.M he returned from the circus and was taking his
dinner when he heard somebody screaming "Marile marile mok marile". He
immediately run out of his house and noticed the appellant running. He also noticed
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that near the road people were pouring water on the head of the deceased. He
enquired from the deceased as to what happened and the deceased replied that he
was stabbed by the appellant and he will not live anymore and conveyed to the PW6
to console his parents.
In the cross-examination, PW-6 has however clarified that he has not stated
before the Police that the deceased had informed him that the deceased was stabbed
by the appellant. PW6 has however clarified that he has not falsely deposed that the
deceased had informed him that he was stabbed by the appellant.
10. PW7 is a co-villager and an eye witness who had deposed that at about 10:25
P.M when he was sitting next to his son who was studying, he heard the deceased
repeatedly shouting "Mother, Makshed assaulted me I am dying". He accordingly
flashed his three cell torch and saw the appellant stabbing the deceased at the back of
his house and he also yelled that the deceased was being assaulted, the appellant
thereafter fled the place. PW-6 had deposed that the deceased fell in the courtyard of
Fazal and he saw several injuries on the body of the deceased.
In cross-examination, PW7 has clarified that he did not state before the Police
that there was light at the place of occurrence. PW7 has however reiterated that he
saw the appellant stabbing the deceased in the flash of the torch light.
11. PW8 is a hearsay witness who had deposed that he had heard from the people
that the deceased had disclosed before the public that the appellant inflicted injury on
the deceased.
12. PW9 is a hearsay witness who had heard from the people that the appellant had
inflicted injury on the deceased. He has also deposed that he had seen the deceased
in the courtyard of Fazal and saw blood oozing out from the head and chest of the
deceased.
13. PW10 is a witness to the dying declaration made by the deceased who had
deposed that he met the deceased in the courtyard of Fazal and at that time the
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deceased was in a condition to talk. He has deposed that when he enquired from the
deceased as to who inflicted the injury, the deceased informed PW10 that it was the
appellant who had inflicted the injury. PW10 has also deposed that Md. Hanif had
handed a knife to him which was found in the courtyard of Fazal and the knife was
handed over to the Police the following day. PW10 is also a witness in the seizure list.
In cross-examination, PW10 has again clarified that the deceased was in a
condition to speak at Fazal's house.
14. PW11 is the sister of the deceased who had deposed that at about 10/10:30 P.M
she heard noise on the road and she immediately came out from her house along with
her father, younger sister Jasmina and mother and heard the deceased screaming "O
ma marilu". She had deposed that she saw the appellant running followed by the
deceased into the courtyard of Fazal. She had deposed that she along with other
followed the appellant the deceased and saw the deceased laying in the courtyard of
Fazal with the injuries on the neck and chest and blood was oozing out from the
injuries. She had deposed that while Sabedjal tried to grab the appellant, the
appellant threatened Sabedjal with dire consequences. She has also deposed that she
had seen one sharp cutting weapon fell down from the possession of the appellant in
the courtyard of Fazal. The witness had deposed that she had accompanied the
deceased to GMCH. In cross examination, the witness has reiterated that the
deceased was following the appellant screaming "O ma marilu" and clarified that
Sabedjal had tried to grab the appellant, but the appellant threatened Sabedjal with
dire consequences.
15. PW12 is a witness to the dying declaration made by the deceased who had
deposed that Sahjahan had seated the deceased in a bench at Fazal's courtyard and
he saw blood on the face of the deceased. On enquiry as to what happened the
deceased replied that the appellant had stabbed him with a sharp weapon. The
witness has deposed that he saw one sharp weapon laying at the courtyard of Fazal
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which he picked up and handed over to Sajahan.
In cross-examination, the witness has reiterated that the deceased had
disclosed that the appellant caused the injury. PW12 has also been examined by the
Magistrate under Section 164 Cr. PC.
16. PW13 is a Doctor who was working as Medical Officer at FRU Mukalmua. He had
deposed that on 04/01/2016 he examined the deceased. He has also deposed that
there is a history of alleged assault with sharp pointed weapon and there is cut injury
on the left side of the chest sized 2 x 1 cm and also cut injury below chin and cheek
sized 1 x 1 cm each. He has deposed that at the time of examination, the patient was
alive. He has deposed that Exhibit-7 is the injury report and Exhbit-7(1) is his
signature.
17. PW14 has deposed that hearing the noise from the side of the road she and her
husband Abdul Ali reached the house of Fazal and heard the deceased uttering "save
me". She had deposed that she had seen people pouring water on the head of the
deceased.
18. PW15 is the Gaonbura of Natipara Ahata village under Mukalmua P.S who has
identified the appellant present in the dock. He had deposed that the Police had seized
one black colour chadar, one pair of hawai chappel and two mobiles from the place of
occurrence. The witness has proved the seizure list which is Exhibit-2.
In cross-examination, the witness has clarified that his village and that of the
appellant are different but both the village falls under his 'lat'. He has also clarified
that Sabedjal handed over the articles to the Police and he was present.
19. PW16 is the Investigating Officer (IO) who has drawn the sketch map of the
place of occurrence which is proved as Exhibit-6, the seizure list which is proved is
Exhibit-2, the FIR which is proved is Exhibit-1, the seizure of the clothes worn by the
deceased which was handed by GMCH proved by Exhibit-7 and the charge-sheet filed
against the appellant which is Exhibit-10. In cross-examination, the Investigating
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Officer had however clarified that; i) PW2/Sabedjal, in his statement u/s 161 Cr. PC did
not disclosed that the appellant stabbed the deceased, the witness also did not
disclose that when he tried to catch the appellant he was threatened with dire
consequences, ii) PW3/Inser Ali in his statement u/s 161 Cr. PC did not disclose that
on the night of occurrence he heard the noise "morilu morilu". The witness also did
not disclose that the mobile, chappel and sadar were handed over by him to Mamtaz,
iii) PW4/Jasmina Parbin did not disclose u/s 161 Cr. PC that the deceased disclosed
that he was assaulted by the appellant, iv) PW-9/Uzir Alom in 161 Cr.PC did not
disclose that the appellant inflicted injury on the deceased, v) PW10/Mamtaz Ali in 161
Cr.PC did not disclose that the deceased was in a condition to speak when he met the
deceased at Fazal's house and vi) PW11/Nilima Khatoon in 161 Cr.PC did not disclose
that the deceases was following the appellant screaming "O ma marilu". The witness
also did not disclose that when Sabedjal tried to grab the appellant, the latter
threatened Sabedjal with dire consequence. The witness also did not disclose that she
witnessed one sharp cutting instrument falling down from the possession of the
appellant at the courtyard of Fazal.
20. PW-17 is the Astt. Professor, Deptt. of Forensic Medicine at GMCH who has
conducted post-mortem on the dead body of the deceased and who has deposed the
injuries on the body of the deceased as follows; 1) Surgical stitch wound on the left
malor bone (on the cheek) on removing stitch 1 cm x .5 cm x muscle deep, 2) Stitch
wound surgically made on left chin 2cm away from midline on mandible 2 in nos. of
sizes 1.2 cm x .2 cm x muscle deep, 3) Surgical stitch wound present on left upper
chest wall lateral aspect of anterior axillary line 20cm left of midline and 22cm below
the deep of shoulder. 2 stitches on removing clean cut margin 2cm x .5 cm x cavity
deep (chest tube) and 4) Surgical stitch wound 5 cm to the left of midline and 3cm
below the nipple over the chest 2 stitches on removing the stitches stab injuries of .
8cm x .5cm spindle shape under line muscle contused. Puncture wound present
between 4th and 5th rib (inter coastal space). On removing sternum blood clots are
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present all over the chest cavity. The witness has deposed that death was due to
hemorrhage and shock as a result of injury sustained on the body. All the injuries
described were ante-mortem caused by sharp cutting pointed weapon except injury
No.3 (which was surgically made) and homicidal in nature. Time since death approx 6
to 12 hours. The witness has identified his signature in the post-mortem report which
is proved by Exhibit-6. In his cross-examination, the witness has clarified that injury
No.1 alone is not sufficient to cause the death and the injury No.2 alone is also not
sufficient to cause the death. The witness cannot opine whether the injury No3 alone
is sufficient to cause death or not. The witness has clarified that the injury No.4 which
is inflicted on the chest is sufficient to cause the death of the deceased. The witness
has also clarified that it is very unlikely that the person would have survived even
when proper treatment was given. The witness has also clarified that most likely the
injuries were inflicted by a single weapon.
21. On completion of the prosecution evidence, the incriminating circumstances
against the appellant were put to him in his examination under Section 313 Cr.PC, to
which the appellant, denied the circumstances against him.
22. Upon consideration of the evidence of the prosecution witnesses and the
materials on record, the Court of the learned Sessions Judge Nalbari, passed the
impugned judgment convicting and sentencing the appellant, which is the subject
matter of the present appeal.
23. Mr. A. Das Gupta, learned Sr. counsel for the appellant has submitted that the
evidence on record is not sufficient to prove the case against the appellant beyond all
reasonable doubt and therefore, the appellant cannot be held guilty of committing the
offence of murder under Section-302 IPC. The learned counsel has submitted that the
complaint made in the ejahar and the deposition of the PW-1/informant is all together
different. The learned counsel has also referred to the cross-examination of PW-16/I.O
and submits that there are material contradictions in the deposition made by the PW-
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2, PW-3, PW-4, PW-7, PW-9, PW-11 and the clarification given by the PW-16 in his
cross-examination. It is therefore, submitted that, it may not be safe to rely and
convict the appellant in view of the discrepancies appearing in the evidence of PW-16
vis-a-vis the evidence of PW-2, PW-3, PW-4, PW-7, PW-9 & PW-11.
24. The learned Sr. counsel has also submitted that no material evidence has been
adduced by the prosecution to establish that there was prior enmity between the
appellant and the deceased which could have led the appellant to murder the
deceased. The learned counsel accordingly submits that when no motive or intention
has been attributed to the appellant to cause the death of the deceased, the appellant
cannot be convicted and sentence under Section-302 IPC and even assuming that the
appellant, by his action, has caused the death of the deceased, the appellant can at
best be convicted only under the penal provision of Section-304 Part-I or Part-II.
25. On the Dying Declaration made by the deceased, the learned counsel for the
appellant has referred to the cross-examination of PW-16/IO who has clarified that
PW-10/Mantaz Ali had not disclosed that the deceased was in a condition to speak
when he made the deceased at Fazal's house. The learned counsel for the appellant
submits that there are inconsistencies in the evidence of PW-10 as regard the dying
declaration made by the deceased and therefore, the dying declaration does not
inspire the confidence of the Court on the basis of which the conviction of the
appellant can be sustained and is therefore, liable to be rejected. The learned counsel
has relied in the case of Atbir Vs. Government of NCT of Delhi, reported in AIR
2010 SC 3477 (para- 20 & 22)/(2010) 9 SCR 993 (para-15 & 16) and in the case of
Naeem Vs. State of Uttar Pradesh, reported in AIR 2024 SC 1381 (para-6)/
(2024) 3 SCR 36 (para-6).
26. With regard to the weapon of offence, the learned counsel for the appellant
submits that the weapon has not been produced in the Court and therefore, it can be
safely presumed that no material subsists to link the appellant with the crime. The
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learned counsel has relied in the statements made by PW-1 and PW-10 where both
the prosecution witness in their cross-examination has deposed that they have not
seen the seized articles in the court today. The learned counsel has also relied in the
statement made by PW-16 who had stated that he had sent the seized wearing
clothes of the deceased and jacket and the pointed iron rod to FSL for examination on
08/01/2016 but the FSL had returned back the same stating that due to non-
availability of the DNA chemical, the exhibited materials sent to the FSL could not be
examined. The learned counsel therefore submits that the weapon of offence was not
recovered and even assuming that the weapon was recovered, there is no proof that it
was used by the appellant in the commission of the crime. In support of his
submission, the learned counsel has relied in the case of Sunil Kundu & Anr. Vs.
State of Jharkhand, reported in (2013) 4 SCC 422 (para-23).
27. Ms. A. Begum, learned Addl. Public Prosecutor, Assam, on the other hand
submits that there are sufficient material evidence on record for holding the appellant
guilty of committing the murder of the deceased beyond all reasonable doubt. The
learned Addl. PP has relied on the evidence adduced by the PW-1, PW-2, PW-4 & PW-
7 who are all eye witnesses to the incident and had seen the appellant stabbing the
deceased. The evidence of the prosecution witnesses corroborates with each other
and their evidence has remained unimpeached in their cross-examination. The learned
Addl. PP has submitted that it is only PW-16/IO who, in his cross-examination had
clarified that PW-2 did not disclose that the appellant stabbed the deceased on his
chest with a sharp weapon. It is however submitted that the appellant has not cross-
examined PW-1, PW-4 & PW-7 to disprove the fact that these witnesses have seen the
appellant stabbing the deceased. The learned Addl. PP has also referred to the
confessional statement of PW-2 & PW-5 made to the Magistrate u/s 164 Cr.PC in
which the PWs have clearly narrated the incident as seen by them. The learned Addl.
PP, has, next referred to the evidence of PW-3, PW-6 PW-10 & PW-12, who are the
witnesses to the dying declaration made by the deceased. The evidence of the
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witnesses to the dying declaration corroborate with each other. The learned Addl. PP
has submitted that none of the PWs has been cross-examined to discredit their
evidence and therefore, the evidence of these witnesses inspire confidence and do not
suffer from any legal infirmity. It is also submitted that the evidence of PW-3, PW-6,
PW-10 & PW-12 are corroborated by the evidence of PW-13, who had treated the
deceased at FRU Mukalmua and had deposed that at the time of examination of the
deceased, he was alive. The learned Addl. PP, therefore submits that the decision
relied by the appellant in Atbir (supra) and in the case of Naeem (supra) on the
dying declaration made by the deceased, in fact, supports the case of the prosecution
and not the other way round. On the submission made by the learned counsel for the
appellant that as there was no motive or intention on the part of the appellant to kill
the deceased, the learned Addl. PP has submitted that, the bodily injuries inflicted by
the appellant on the deceased, by itself, was sufficient to hold the appellant guilty of
murder under Section 300 IPC and justify conviction under Section-302 IPC. The
learned Addl. PP has referred to the evidence of PW-17 who has described the injuries
on the body of the deceased and has, in his cross-examination clarified that the injury
no.4 which is inflicted on the chest is sufficient to cause the death of the deceased. In
support of her submission, the learned Addl. PP has also relied upon the case of
Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh, reported
in (2006) Suppl. 4 SCR 633 (para-17, 17.1, 17.2) to substantiate that a single blow
inflicted by the accused, resulting in death have been found to be sufficient for
conviction under Section 302 IPC. On the non production of the weapon before the
Court, the learned counsel submits that when there is cogent eye-witness account
corroborated by medical evidence and the dying declaration of the deceased, the non
production of the weapon of the offence is not fatal to the case of the prosecution.
The learned Addl. PP has submitted that the case of Sunil Kundu (supra) relied by
the appellant is not relevant to the case in hand as in that case, it was established
that there was no fire arm injuries on the deceased and the eye witness account was
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totally inconsistent with the medical evidence, which is not so in the present case.
28. The rival submissions have been duly considered and the materials, including
the TCRs have been carefully perused.
29. In the instant case, there are four eye-witnesses, namely, PW1, PW2, PW4 and
PW7. Further, dying declarations have been proved by PW3, PW4, PW6, PW12. It is
trite law that in a criminal trial, it is not the quantity of the evidence but the quality of
the same which is material. In the instant case, we have noticed that so far as the
versions of the eye-witnesses are concerned regarding the commission of the offence,
the same are consistent with regard to the place of occurrence, involvement of
appellant, time of occurrence and the other attending facts and circumstances. The
aspect of the injuries sustained and the manner by which the deceased was sought to
be treated by pouring water on his head has also been consistently deposed by the
aforesaid witnesses. Amongst the eye-witnesses, PW7 had also given a statement
under Section 164 of the Cr.PC. Though such statement cannot be treated as evidence
stricto sensu, the same can certainly be taken into consideration for the purpose of
corroboration and the in the instant case, the version given by the PW7 in the dock is
consistent with the aforesaid statement under Section 164 Cr.PC.
30. So far as the evidence of PW3, PW4, PW6 and PW12 concerning the dying
declaration made by the deceased, it is seen that the respective versions are
consistent with each other. At this stage, it would be necessary to deal with the
submission made on behalf of the appellant that there are certain inconsistencies in
the said dying declaration, more so with regard to the place from where the deceased
had made such declaration. It has been highlighted by the learned Senior Counsel that
as per certain witnesses, such declaration was made at the courtyard of Fazal's house
and as per the other witnesses, it was made at the road. It is however, clear from the
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evidence on record that the assault was made firstly near Abdul's shop and again at
the courtyard of Fazal. It is also on record that the death was not instantaneous and
the deceased was brought to the road from where, he was taken by an Ambulance at
first to the Mukalmua Civil Hospital and thereafter to the GMCH. It therefore, does not
appear to be inconsistent at all with regard to the place from where the dying
declaration was made.
31. We have also noticed that the incident was in a wintry night (January) that too,
in a village and within a short span of time, a number of things had happened,
including gathering of people, fleeing away of the appellant, trying to treat the
deceased by pouring water on his head, taking him to the road to put him in the
Ambulance to the local hospital and then to the GMCH. It is therefore, natural that
minor inconsistencies in the versions of the witnesses would be there. But we have
not noticed that there is any major inconsistency.
32. As regards the submission that the version in the FIR and the deposition of the
informant as PW1 are inconsistent. It is trite law that an FIR is not supposed to be an
encyclopaedia of all the facts and circumstances and is only a brief information to set
in motion the criminal law into action. In this regard, one may gainfully refer to the
case of Superintendent of Police, CBI Vs. Tapan Kumar Singh , reported in (2003) 6
SCC 175 and the relevant observations are extracted hereinbelow:
"20. It is well settled that a First Information Report is not an encyclopedia,
which must disclose all facts and details relating to the offence reported. An
informant may lodge a report about the commission of an offence though he
may not know the name of the victim or his assailant. He may not even know
how the occurrence took place. A first informant need not necessarily be an eye
witness so as to be able to disclose in great details all aspects of the offence
committed. What is of significance is that the information given must disclose
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the commission of a cognizable offence and the information so lodged must
provide a basis for the police officer to suspect the commission of a cognizable
offence. At this stage it is enough if the police officer on the basis of the
information given suspects the commission of a cognizable offence, and not
that he must be convinced or satisfied that a cognizable offence has been
committed. If he has reasons to suspect, on the basis of information received,
that a cognizable offence may have been committed, he is bound to record the
information and conduct an investigation. At this stage it is also not necessary
for him to satisfy himself about the truthfulness of the information. It is only
after a complete investigation that he may be able to report on the truthfulness
or otherwise of the information. Similarly, even if the information does not
furnish all the details, he must find out those details in the course of
investigation and collect all the necessary evidence. The information given
disclosing the commission of a cognizable offence only sets in motion the
investigative machinery, with a view to collect all necessary evidence, and
thereafter to take action in accordance with law. The true test is whether the
information furnished provides a reason to suspect the commission of an
offence, which the concerned police officer is empowered under Section 156 of
the Code to investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or depute any
other competent officer to conduct the investigation. The question as to
whether the report is true, whether it discloses full details regarding the manner
of occurrence, whether the accused is named, and whether there is sufficient
evidence to support the allegations are all matters which are alien to the
consideration of the question whether the report discloses the commission of a
cognizable offence. Even if the information does not give full details regarding
these matters, the investigating officer is not absolved of his duty to investigate
the case and discover the true facts, if he can."
The aforesaid view has been reiterated in many subsequent decisions, including
Page No.# 17/18
Constitutional Bench case of Lalita Kumari Vs. Govt. of Uttar Pradesh, reported in
(2014) 2 SCC 1.
Though it appears that by lodging of the ejahar, it was suspected that the
appellant had committed the offence at the instigation of certain other accused
persons, no materials were found against those accused persons and accordingly, no
charges were framed. On the submission regarding contradiction in the versions of the
PWs vis-a-vis the deposition of the IO as PW16, we have noticed that though there
are certain omissions in so far as the police statement made by PW2, PW4 and PW6
are concerned, there are no such omissions so far as PW3 is concerned.
33. We are also of the view that the connotation of the expression 'contradiction'
should not be equated with 'omission'. Contradiction necessarily requires that while a
witness makes a certain statement before the police under Section 161 of the Cr.PC, a
completely different statement is made by him as a witness in the dock. On the other
hand, omission, as the term would itself clarify is not stating certain details before the
police but stating those as the witness in the dock. The above observation, however,
should not be understood that the aspect of omission cannot be taken as a matter of
defence and the witness can very well be confronted with such omission. However, the
distinction is to be kept in mind while deciding a case wherein all the attending facts
and circumstances are to be taken into consideration. We would hasten to add that a
very important role is cast upon the IO in recording the statement of the witnesses
under Section 161 of the Cr.PC as such statements are not required to be signed by
the witnesses and therefore, practically, the witnesses may not have a chance to be
read over the statement recorded. Therefore, it is incumbent upon the IO to record all
such statements in its entirety and include everything which have been stated by the
witnesses.
34. As regards the nature of injuries caused, as per the opinion of the Doctor, there
Page No.# 18/18
are 4 nos. of injuries and the injury no. 4 inflicted on the chest is itself sufficient to
cause death. Therefore, the ingredients of Section 300 of the IPC are fulfilled as the
injuries were caused either with the intention to cause death or with the knowledge
that it is so imminently dangerous it must, in all probability cause the death. In that
view of the matter, the submission that there is a scope for alteration of the conviction
and the sentence to Section 304 of the IPC cannot be countenanced.
35. In conspectus of the aforesaid discussion and the materials on record, we are of
the view that the conclusion arrived at by the learned Sessions Judge, Nalbari in
convicting and sentencing the appellant under Section 120(B)/302 of the IPC vide the
judgment and order dated 05/12/2019 in Session Case No. 40/2016 does not warrant
any interference.
36. The appeal is accordingly dismissed.
37. Send back the TCRs.
JUDGE JUDGE
Comparing Assistant
