Md. Majid Miah @ Shekh Mujibar Khan vs The State Of Tripura
2022 Latest Caselaw 63 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA

                    CRL.A.(J) NO.01 OF 2021

1. Md. Majid Miah @ Shekh Mujibar Khan,
son of Shekh Jahiruddin Khan,
resident of Rajnagar, Jaipur,
P.S. West Agartala, District-West Tripura

2. Md. Rafiq Miah @ Luthu,
son of late Jamshed Miah,
resident of Rajnagar, Jaipur,
P.S. West Agartala, District-West Tripura
3. Md. Sajal Miah,
son of Khurshed Miah, resident of Rajnagar,
Jaipur, P.S. West Agartala, District-West Tripura
4. Mst. Jarina Begum,
wife of late Sahajahan Ali,
resident of Rajnagar, Jaipur,
P.S. West Agartala, District-West Tripura
                                                   ........... Appellant(s)
                    Versus
The State of Tripura
                                                ........... Respondent(s)

BEFORE HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH

For appellant(s) : Mr. P.K. Biswas, Sr. Advocate Mr. P. Majumder, Advocate Mrs. V. Poddar, Advocate Ms. S. Debbarma, Advocate

For Respondent(s) : Mr. Sumit Debnath, Advocate

Date of hearing : 15.12.2021

Date of delivery of judgment & order : 19.01.2022

Whether fit for reporting : YES

JUDGMENT & ORDER (Arindam Lodh, J)

The present appeal is directed against the judgment

and order of conviction and sentence dated 04.01.2021, passed

by learned Addl. Sessions Judge, West Tripura, Agartala in

connection with ST(T-I) 38 of 2015, whereby and whereunder

the appellants were convicted and sentenced to suffer rigorous

imprisonment for life and also to pay a fine of Rs.25,000/- each

with default stipulation for committing offence punishable under

Section 302 of the Indian Penal Code.

2. Shortly stated, the prosecution case was set on

motion on the basis of the written complaint lodged by one

Abdul Rahim(hereinafter referred to as 'informant') against the

accused persons, namely (i) Md. Helal Miah, (ii) Md. Khurshed

Miah, (iii) Md. Murshed Miah, (iv) Sheikh Mujibur Khan, (v) Md.

Rashid Miah, (vi) Md. Sajal Miah, (vii) Md. Iqbal Miah, (viii)

Sheikh Rabi Khan, (ix) Md. Dulal Miah, (x) Mst. Jarina Begam,

(xi) Mst. Hafija Khatoon, (xii) Md. Mirjan Miah and (xiii) Md.

Rafique Miah. It is stated, inter alia that on 27.09.2013 at about

7.30 pm, one Shahjahan Miah(here-in-after referred to as

'deceased'), nephew of the informant went to the shop of

accused Khurshid Miah for purchasing certain articles. At that

time, all the accused persons armed with lathi(stick), iron rod,

etc. made a preplanned attack upon the deceased and assaulted

him by making blows indiscriminately causing serious bleeding

injuries on various parts of his body including head, and as a

result, the deceased lost his sense at the spot. Deceased was,

thereafter rescued by his brother Rabiul Alam accompanied with

other local people and brought him to local hospital for

treatment. Initially, the deceased was referred to ILS Hospital

wherefrom he was taken to Apollo Hospital, Kolkata for better

treatment. During treatment in the hospital at Kolkata the

deceased succumbed to his injuries on 01.10.2013.

3. The said written complaint lodged on 27.09.2013

had led the Officer In-charge, West Agartala Police Station to

register a specific case vide West Agartala PS Case No.305/2013

under Sections 341/325/34 of IPC. Investigation was carried on

initially by SI Adhar Debbarma(here-in-after referred to as the

1st IO) and subsequently the investigation was entrusted to

Inspector Milan Ch. Dutta(here-in-after referred to as the 2nd

IO). On conclusion of investigation, charge-sheet was submitted

under Sections 341/302/34 of IPC against all the above named

accused persons.

4. During investigation, the 1st IO had visited the place

of occurrence, prepared hand-sketch map of the place of

occurrence with separate index. He also examined the

witnesses, namely Abdul Rahim, Gobinda Das and Hasina

Begam. The 1st IO also had seized the alleged broom, a piece of

stone(commonly called 'Puta' in local language which is used for

mixing/making paste of various spices), a piece of wooden file, a

piece of firewood measuring more than one cubit in length, a

lathi(stick), one handle of spade measuring one and half cubits

in length, one wooden lathi(stick) measuring one and half cubits

in length and one iron rod measuring one and half cubits in

length by way of preparing seizure list dated 28.09.2013. The 1st

IO also arrested the accused Khurshid Miah and Jarina Begam

on 02.10.2013. At this stage of investigation, the 1 st IO having

been transferred handed over the case docket to the Officer In-

charge. The 2nd IO having started the investigation on

10.10.2013 had prepared separate hand-sketch map and index.

He also examined and recorded the statements of some other

witnesses. He also collected the medical documents from ILS

Hospital and postmortem report, and finally submitted charge-

sheet.

5. On receipt of the charge-sheet, learned Chief Judicial

Magistrate, West Tripura took cognizance of the offence and

ultimately the case was committed to the Court of learned

Sessions Judge, West Tripura wherefrom the case was

transferred to the Court of learned Addl. Sessions Judge. At the

commencement of trial charges were framed under Sections

341/302/34 of IPC against all the accused persons who pleaded

not guilty and claimed to be tried.

6. In order to substantiate the charges as stated

above, the prosecution had examined as many as 18(eighteen)

witnesses including the informant as PW1, the 1st IO as PW16

and 2nd IO as PW18 and introduced some material documents.

After conclusion of prosecution evidence, accused persons were

examined under Section 313 of CrPC with reference to the

incriminating circumstances as surfaced in the prosecution

evidence. The accused persons had pleaded to be innocent, but

declined to adduce evidence on their behalf. Thereafter, having

heard the arguments advanced by the learned counsels

appearing for the parties and considering the evidence and

materials on record, the learned Addl. Sessions Judge had

returned a finding of guilt against 4(four) accused persons

namely, Md. Majid Miah @ Shekh Mjjibur Khan, Md. Rafiq Miah

@ Luthu, Md. Sajal Miah and Mst. Jarina Begum and acquitted

the remaining accused persons.

7. Being aggrieved by and dissatisfied with the

aforesaid conviction and sentence, the above named 4(four)

convicts have preferred the instant appeal before this Court.

8. We have heard Mr. P.K. Biswas, learned Sr. counsel

assisted by Mr. P. Majumder, Mrs. V. Poddar and Ms. S.

Debbarma, learned counsels appearing for the appellants. Also

heard Mr. Sumit Debnath, learned Addl. P.P. appearing for the

State-respondent.

9. In support of the appeal, Mr. Biswas at the very

outset questioned the very genesis of the prosecution case since

the FIR was lodged after 22(twenty two) hours of the occurrence

of the incident and that too without any explanation. According

to Mr. Biswas, learned Sr. counsel, the informant by consuming

such unreasonable time falsely implicated the accused persons

out of his own sweet will. Learned Sr. counsel contended that

the learned Addl. Sessions Judge ought to have discarded the

concocted versions of the prosecution witnesses. Furthermore,

the prosecution witnesses had contradicted each other in course

of their depositions before the Court. Mr. Biswas, learned Sr.

counsel emphatically submitted that the prosecution had failed

to produce any independent witnesses and the learned Addl.

Sessions Judge while convicting the accused-appellants had

relied upon the depositions made by the related witnesses who

were interested to implicate the appellants. Again, Mr. Biswas,

learned Sr. counsel tried to persuade this Court raising his

serious doubt in regard to the presence of PW3 and PW4 at the

scene of crime. There were shops where the alleged offence had

committed, but prosecution could not produce a single witness

from those shop owners. Learned Sr. counsel further submitted

that there were altogether 13(thirteen) accused persons.

Learned Addl. Sessions Judge had acquitted 9(nine) accused

persons. The present appellants were convicted only on the

basis of surmises and conjectures.

10. Next, Mr. Biswas, learned Sr. counsel appearing on

behalf of the appellants contended that one set of prosecution

witnesses had condemned the evidence of other sets of

witnesses and in such a situation, learned Addl. Sessions Judge

ought to have acquitted the convict-appellants in the line of the

principles drawn by the Apex Court in the case of Harchand

Singh & Anr. vs. State of Haryana, AIR 1974 SC 344(para

9).

11. Opposing the aforesaid submissions advanced by

learned Sr. counsel on behalf of the appellants, Mr. Sumit

Debnath, learned Addl. P.P. strongly defended the judgment and

order of conviction and sentence passed by the learned Addl.

Session Judge. Mr. Debnath, learned Addl. P.P. contended that

the related witnesses could not in any way be said to be the

interested witnesses. Learned Addl. P.P. had invited our

attention to the evidence of PW2, PW3 and PW4, who according

to him were independent witnesses. He further argued that due

to faulty investigation the evidence of credible witnesses should

not be discarded.

12. We have considered the rival submissions advanced

by the learned counsels appearing for the parties. Before we

advert to the merits of the case, it would be apposite to peruse

the evidence and materials on record.

12.1. PW1, the informant of the case deposed as PW1. The

deceased Shahjahan Miah was his nephew. He deposed that

while he was in a shop at about 7.00 pm on 27.09.2013 saw

Khurshid Miah, Musjid Miah, Jarina Begam, Rashid Miah, Mirzan

Miah, Rafik Miah, Halal Miah, Iqbal Miah, Majid Khan, Hafeja

Khatun, Rabi Khan, Dulal Miah and another, beating Shahjahan

with lathi, rod, broom, puta(a piece of stone used to crash and

paste spices). By way of beating, the accused persons took

Shahjahan to the house of Khurshid Miah, where he was beaten

severely. He further deposed that due to such beating his

diseased nephew had sustained grievous injuries on his head,

face and other parts of the body and blood was oozing out from

the nose and ear. After hearing the chaos, other members of the

locality and his family members, namely his nephew Rabiul

Alam, niece Hasina and wife of his elder brother accompanied by

his elder brother came to the spot. Thereafter, they managed to

take his nephew to the ILS Hospital and wherefrom he was

taken to Apollo Hospitals, Kolkata, but on 01.10.2013 his

nephew succumbed to his injuries. PW1 further deposed that he

informed the matter to the Officer In-charge, West Agartala

Police Station by a written complaint which was written as per

his dictation by Abdul Karim. He put his signature thereon after

being read over the contents of the complaint by the said scribe.

PW1 identified his signature(Exbt.1/1). He also identified the

accused persons in the dock. He further deposed that IO had

seized the lathi, rod, broom, puta, preparing a seizure list where

he put his signature. He identified his signature(Exbt.2/1). PW1

also identified the seized articles(Exbt.MO.1 series).

Being confronted with cross-examination, PW1

stated that he could not tell the names of all sons and daughters

of Khurshid Miah but he could recognize them. During his cross-

examination he stated that he could not say what had been

written in the FIR, but later on the content of the FIR was read

over by the scribe. He further stated he narrated the names of

11(eleven) persons in the FIR. He denied the suggestion that

the names which were mentioned by him in the FIR were not

correct. In cross-examination he stated that the distance

between the house of his brothers and the house of Khurshid

Miah was approximately 100/150 cubits. He denied the

suggestion put forth by the defence that Khurshid Miah was

attacked by his relative. He denied the suggestion that he was

not present at the spot.

12.2. PW2, Gobinda Das appearing as PW2 deposed that

on the fateful date and time when he came in front of the gate

of Khurshid Miah, enroute to his home he saw Shahjahan was

beaten by Majid Miah and Luthu and another one whose name

he could not recollect. He obstructed them not to beat

Shahjahan and he had fallen on the road. He started making hue

and cry. Thereafter, he parked his cycle on the roadside and

went to the house of Khurshid Miah and saw Shahjahan was laid

down on the courtyard and blood was coming out from various

parts of his body. Thereafter, he was first taken to GBP Hospital

wherefrom he was shifted to ILS Hospital, Agartala and

thereafter he was referred to Kolkata for his better treatment.

PW2 further deposed that he could recognize two accused

persons as mentioned above. He further deposed that the

names of other accused persons who were present before the

court were not known to him, but they were all present at the

place of occurrence.

During cross-examination, PW2 stated that his

statement was recorded 2/3 days after the incident at about

09.00 am in the morning on the road when other persons of the

locality were also present. He denied the suggestion that Majid

Miah and Luthu did not beat Shahjahan. To a question put forth

by the defence PW2 answered that at the time of incident the

shop of Khurshid Miah was opened.

12.3. PW3, Hasina Begam appearing as PW3 deposed that

at the relevant time she heard a chaos and she was told by one

boy that Shahjahan was being beaten by some persons. She

went to the spot at the house of Lutha and saw her brother was

beaten by some persons, but she could not tell the names of

those persons. However, PW3 deposed that the persons in the

dock of the court were all present at the time of incident. She

further deposed that her brother was beaten by lathi, rod,

broom and puta(piece of stone). She further deposed that she

also was beaten by them. PW3 deposed that the mother and

brother of Shahjahan and one of her nephew came to the spot

wherefrom he was taken to the hospital.

During her cross-examination, the defence had

drawn her attention to her statement she made before the I.O.

during her examination under Section 161 of CrPC where the

names of accused Lutha and Sajal were not mentioned.

12.4. PW4, Suman Miah deposed that at the time of

incident he was in the shop of Johora Begam for buying some

food articles. PW4 deposed that he saw Rabiul and Majibur were

beating Shahjahan with wooden pile in front of the shop of

Khurshid Miah. He further deposed that seeing the incident he

went to the house of Shahjahan Miah and informed them

regarding the incident. Thereafter, he noticed that Shahjahan

Miah was taken to hospital.

During his cross-examination he stated that he was

examined by Darogababu in the house of the deceased after 2/3

days of the incident. The defence had drawn his attention to his

statement he made in chief-examination regarding the

involvement of Rabiul and Majbul, who were beating Shahjahan

with wooden pile, was found to be absent in his previous

statement recorded under Section 161 of CrPC. He denied the

suggestion put forth by the defence that he did not see the

incident of beating Shahjahan Miah by the accused persons

Rabiul and Majibul in front of the shop of Khurshid Miah. He

further stated that the shop of Khurshid Miah was on the main

road.

12.5. PW5, Mayarani Bibi, mother of the deceased

Shahjahan Miah deposed that her son was a supplier of Mid-Day

meal to the JB Schools. There was a quarrel on 26.09.2013

between his son and Hellal Miah regarding awarding of 3 kg. of

rice to Hellal Miah for cleaning stool in the school. Hellal Miah

had demanded 7 kg. of rice. At that time, she advised his son

Shahjahan not to quarrel with Hellal Miah because he and his

family had no good relation. PW5 deposed that on 27.09.2013 at

about 6.00 pm her son Shahjahan and Rabiul Alam went to the

house of their maternal aunt. At the time of returning home,

Shahjahan directed his younger brother to go home and he

would come later and he went to the shop of Khurshid Miah. She

further deposed that it was around 7.30 pm, her son was beaten

by Rabi Khan, Majibur Khan and Murshid Miah with wooden pile.

At that time Suman Miah(PW4) informed her about the incident

and thereafter she along with her husband Abdul Karim, son

Rabiul Alam and her grandson had rushed to the spot where she

had seen that her son was taken to the house of Khurshid Miah

by the accused persons. She had seen that her son was beaten

in the house of Khurshid Miah by Rafik Miah @ Lutha and Sajal

Miah. Her son demanded water and Sokhina Begam provided

water to her son. PW5 deposed that Jarina Begam assaulted

Shahjahan with a piece of stone(puta) on his head. Her son was

also beaten by the accused persons, namely Rabi Khan, Mujibur

Khan, Iqbal Khan, Murshid Miah, Sajal Miah, Kajal Miah, Rafik

Miah @ Lutha, Mirjan Miah, Rashid Miah, Hellal Miah, Jarina

Begam, Hafeja Begam, Khurshid Miah. She further deposed that

her younger son Rabiul Alam was taken to the cow shed and

they also assaulted on his head. Thereafter, she started shouting

and she along with her husband and some other persons

rescued her younger son Rabiul Alam from the cow shed, and at

the same time they along with other people had taken away

Shahjahan in senseless condition from the house of Khurshid

Miah to GBP hospital and thereafter to ILS hospital and there

from he was referred to Kolkata, Apollo hospital where he died

on 01.10.2013.

During her cross-examination, she denied all the

suggestions put forth by the defence and no material

discrepancies/contradictions could be elicited from her cross-

examination.

12.6. PW6, Abdul Karim is the father of the deceased. He

deposed that Shahjahan was an MBA graduate. The incident had

occurred on 27.09.2013 at about 7.30 pm at Joypur in front of

the house of Khurshid Miah. He deposed that his son went near

the place of occurrence for buying tiffin. He further deposed that

Suman Miah informed him that his son Shahjahan was beaten

by Sajal Miah and Lutha and on receiving the said information

he along with his family members including his wife, younger

son, and niece went to the spot. On reaching the spot he saw

that his son was beaten by Sajal Miah, Lutha, Iqbal, Mujibur

Khan, Rabi Khan, Rashid Miah, Mirjan Miah, Kajal Miah, Hellal

Miah, Jarina Khatun and Hafeja Khatun. He further deposed that

his younger son was taken to the cow shed by 2/3 persons.

They tried to rescue their sons from those persons. He further

deposed that his elder son Shahjhan was in senseless condition

due to the injury. They had taken him to ILS hospital and

thereafter he was referred to Apollo Hospital, Kolkata where his

son succumbed to his injury.

Nothing material variations could be elicited from his

cross-examination.

12.7. PW7 Rabiul Alam, the brother of the deceased

Shahjahan deposed that on 27.09.2013 at about 7.30 pm he

along with his brother went to their maternal aunt's house at

border Golchakkar, Ramnagar. While they were returning, his

elder brother told him to buy cigarette and directed him to go to

home. PW7 deposed that while he was going to his house he

noticed that at the shop of Murshid Miah there were Sheikh Rabi

Khan, Mujibur Khan @ Mujid Miah, Lutha Miah @ Rafiq Miah,

Mirjan Miah, Jarina Khatun, Hellal Miah, Rashid Miah and Iqbal

Miah, standing in front of the shop. After returning to home

when he was putting off his shoes at that very time Suman

Miah(PW4) came to his house and told him and other family

members that his brother Shahjahan Miah was beaten by Rabi

Khan and Shekh Mujibur. After getting that information he

started to rush towards the spot along with his mother, father,

nephew Kamrul, cousin sister Hasina. When they reached in the

house of Khurshid Miah they saw the accused persons were

beating his elder brother. He further deposed that he had seen

Rafiq Miah @ Lutha assaulted his elder brother with a wooden

pile on his head twice. At the same time Sajal Miah came with a

wooden pile and hit on the head of his brother twice. Other

persons were beating by legs and feasts on the person of his

brother. He further deposed that because of the assault his

brother had fallen on the ground and at that very moment Jarina

Khatun took one piece of stone(puta) with which she hit on the

head of his brother and because of the injury his brother

became senseless. He tried to rescue his brother but Rabi Khan,

Mojid Miah, Rashid Miah, Hafeja Khatun, Dulal Miah @ Kajal

Miah caught him tight and took him in front of the cattle house.

Thereafter his father, mother, Maman Miah, Sakhina Khatun

rescued him and they made him free from those accused

persons. Thereafter, he came at the spot where his brother was

lying in senseless condition. They took his brother with the help

of other persons to the hospital by arranging a four-wheeler. His

brother ultimately died in Kolkata hospital.

Only some suggestions were given to PW7 during his

cross-examination which were denied by him and no substantial

material could be elicited by the defence.

12.8. PW8, Kamrul Nahar deposed as the wife of the

deceased. She deposed that on 27.09.2013 at about 7.00-7.30

pm she was at the house when Suman Miah came to the house

and informed them that her husband was being beaten by some

persons in front of the house of Khurshid Miah and on getting

such information her brother-in-law Rabiul Alam, her father-in-

law, mother-in-law and sister-in-law, Hasina had rushed towards

the place of occurrence. Later on, she heard through her father-

in-law, mother-in-law and brother-in-law that her husband was

assaulted by Jarina Begam, Sajal Miah, Kajal Miah, Murshid

Miah, Rabi Khan, Mujibur Khan, Iqbal Khan, Mirjan Miah, Rashid

Miah, Rafiq Miah and Hellal Miah. She further deposed that she

came to know that her husband was beaten by lathi, iron rod,

broom, wooden pile and piece of stone(puta). During her cross-

examination, her attention being drawn to her previous

statement, it is found that she did not mention the words

'wooden pile' during that statement. No more substantial

materials were elicited from her further cross-examination.

12.9. PW9, Kamrul Hossain deposed that on the fateful

evening Suman Miah came to their house and informed them

that some persons namely Rabi Khan and Mujibur Miah were

beating his maternal uncles, Rabiul Alam and Shahjahan Miah.

He further deposed that on receiving that information he along

with his maternal grandfather, grandmother, his maternal uncle

and aunty had rushed towards the spot. Deposing further he

stated that at the spot he saw that in the house of Khurshid

Miah, the accused persons, namely Sajal, Kajal, Rabi Khan,

Iqbal Miah, Khurshid Miah, Jarina Begam, Lutha, Mujibur Khan

and wife of Khurshid Miah, were beating his uncle, i.e. deceased

Shahjahan Miah with rod, wooden pile, peace of stone(puta).

The accused persons also had threatened him and pushed him

out of the house of Khurshid Miah.

During his cross-examination, his attention being

drawn to his previous statement, it is found that the statements

that he made before the police that he was threatened and

being pushed out and that Shahjahan Miah had fallen down on

the ground were not found. No material deviations are found

from the statements he made during his chief examination.

12.10. PW10, Abdul Jalil deposed that he was not present

at the place of occurrence, but, later on, he heard that Rabi

Khan and Mujibur had beaten Shahjahan Miah and out of those

injuries Shahjahan Miah had died in Kolkata. In front of him

7(seven) documents were seized to which he put his signatures.

He identified his signatures on the seizure list dated 03.12.2013

which are exhibited as Exbt.4/1. PW10 also identified his

signatures on the seized documents which are marked as

Exbt.MO.2/1 series.

12.11. PW11, Abdul Karim deposed that the deceased

Shahjahan Miah was his nephew and he heard the incident over

telephone on 27.09.2013 in the night.

12.12. PW12, Smt. Kunjarani Singha deposed that she was

the Headmistress of Joypur J.B. School where she had served

from 2008 to 2015. She deposed that in the month of

September, 2013 when she reached to the school, she noticed

stool just before the door of the kitchen of the school. Near the

school compound there was a house of Hellal Miah who used to

clean the stool on her direction earlier. On that day also on her

direction he cleared the stool on her direction and for that

service he was awarded some quantity of rice. PW12 further

deposed that she directed Shahjahan Miah(the deceased) to give

some rice to Hellal Miah for his cleaning service. Accordingly, on

her direction Shahjahan Miah handed over rice to Hellal Miah.

On reaching to school on 28.09.2013 she heard the incident of

quarrel of Shahjahan Miah. Later on, she came to know that

injured Shahjahan was shifted to hospital and he died at

Kolkata.

12.13. PW13, Sujit Sarkar is the witness to some

documents(Exbt.MO.2/2).

12.14. PW14, Rajib Basu was posted as SI of Police at

Phoolbagan P.S. on 02.10.2013. He received the death

certificate from Apollo Gleneagles Hospital, Kolkata. He went to

the Apollo Hospital and saw the dead body and prepared the

inquest report at the Apollo Hospital in Kolkata.

12.15. PW15, Dr. Prabir Kumar Deb deposed on behalf of

Department of Forensic Medicine, North Bengal Medical College,

who conducted the postmortem report while he was on duty at

NRS Medical College, Kolkata on 02.10.2013. He deposed that in

his opinion the cause of death was due to the effect of anti-

mortem head injury homicidal in nature. PW15 identified the

post-mortem report prepared by him and his signature on the

report dated 02.10.2013 which is marked as Exbt.5 as a whole.

12.16. PW16, Adhar Debbarma deposed that on 28.09.2013

he was posted at West Agartala PS as SI and on that day he

received the case docket from O/C West Agartala PS for

conducting the investigation of case No.305/13. He visited the

place of occurrence, prepared hand-sketch map on 28.09.2013,

recorded the statements of Abdul Rahim, Gobinda Das and

Hasina Begam. He further examined the informant Abdul Rahim.

He had prepared the seizure list dated 28.09.2013 which was

being identified was marked as Exbt.2. The witness also

identified the seized materials which are marked as Exbt.MO.1

series.

12.17. PW17, Dr. Debasattya Bhattacharjee deposed that

on 27.09.2013 though he was not a Neurosurgeon, but, on

humanitarian ground, he was requested to examine the patient

and as per request he examined the patient and advised CT

scan, etc.

12.18. PW18, Milan Datta being posted at West Agartala

Police Station on 28.09.2013 had endorsed the case to SI Adhar

Debbarma for investigation. PW18 identified his signature on the

FIR(Exbt.7). PW18 personally took up the investigation of the

case on 10.10.2013. He visited the place of occurrence,

prepared the hand-sketch map with index[Exbt.6 and 6(i)]. He

also re-examined some of the material witnesses. Thereafter, he

submitted charge-sheet against the accused persons.

13. We have carefully scrutinized the evidences and

material documents brought on record. Having considered the

submissions of the learned senior counsel appearing on behalf of

the appellants that due to delay in lodging the FIR, the

prosecution case should fail, we are of the opinion that this

submission has no merit. It is explained in the FIR itself that all

the near relatives of the deceased Shahjahan were busy with his

treatment. Undisputedly, the deceased was brutally beaten and

severely injured. Naturally, in such a situation, the primary duty

of the relatives would be to ensure his proper treatment to save

his life.

We have noticed that the incident was occurred at

about 1930 hours on 27.09.2013 and the complaint was lodged

at 1735 hours on 28.09.2013. It has come to our notice that the

relatives of the deceased had taken him first to the GBP

Hospital, Agartala and then to the ILS Hospital, Agartala and

considering his injuries being critical and gradual deterioration of

his condition, he had to be shifted to Apollo Hospital in Kolkata.

In the complaint it is clearly stated that since the relatives,

particularly the father of the victim were all along busy with the

treatment related work, they could not inform the incident to the

police immediately after the incident. Accordingly, the

submission of the learned senior counsel in this regard stands

repelled.

14. Having gone through the evidences on record, it is

surfaced that PW4, Suman Miah appears to be one of the vital

witnesses to the chain of entire circumstances. He was the

person who first witnessed that Rabi and Mujibur were beating

deceased, Shahjahan with wooden pile in front of the shop of

Khurshid Miah, and immediately he informed the matter to the

family members of the deceased including the parents of

Shahjahan. All the related witnesses of deceased Shahjahan

have spoken in the same tune that it was on the basis of

information passed on to them by Suman Miah they had rushed

to the place of occurrence, i.e. at the house of Khurshid Miah

where they had seen the appellants assaulting the deceased

Shahjahan at the courtyard of Khurshid Miah.

15. Next relevant witness, according to us, is PW7 Rabiul

Alam, the younger brother of deceased Shahjahan. From his

evidence it comes to fore that on the fateful evening, i.e. on

27.09.2013 at about 7.00-7.30 pm, he along with his brother

was returning to their house from the house of their maternal

aunt at Border Golchakkar. While they were returning, deceased

Shahjahan told him that he would buy cigarette and directed

him to go home and while he was going to his house he

observed the accused persons were standing in front of the shop

of Khurshid Miah. After reaching at home when he was putting

off his shoes, Suman Miah(PW4) came to their house and

informed that Shahjahan was being beaten by Rabi Khan and

Sheikh Mujibur. Thereafter, they had rushed to the spot and saw

the accused persons were beating Shahjahan. He has

categorically stated that he saw Rafiq Miah alias Lutha assaulting

Shahjahan with a wooden pile on his head twice, while at the

same time Sajal Miah came with a wooden pile and also hit on

the head of his brother twice. Other accused-persons were

beating by legs and feasts on the person of his brother. He

further deposed that when Shahjahan had fallen down on the

ground, at that very moment Jarina Khatun hit on the head of

his brother(Shahjahan) with one piece of stone(puta) when

Shahjahan became senseless. He tried to rescue his brother but

he was taken to a cattle house. Somehow his parents and other

persons had rescued him. Thereafter, Shahjaan was rescued and

taken to the hospital.

16. PW1(uncle of the deceased), PW3(sister of the

deceased), PW5(mother of the deceased), PW6(father of the

deceased), PW7(brother of the deceased), PW8(wife of the

deceased), PW9(son of the sister of the deceased), are all

related witnesses of deceased Shahjahan and except PW8(wife

of the deceased) all had rushed to the house of Khurshid after

being informed by Suman Miah(PW4) that Shahjahan was being

beaten by the accused persons including the appellants herein.

They had seen the accused-appellants assaulting the deceased

with wooden piles, lathi(sticks), iron rods, etc. PW7, Rabiul Alam

has specifically stated that he saw that Rafiq Miah alias Lutha

assaulting Shahjajan with a wooden pile on his head twice. At

the same time, Sajal Miah came with a wooden pile and he also

hit on the head of his brother twice. Ultimately, his brother had

fallen down on the ground and at that very moment Jarina

Khatun @ Mst. Jarina Begam, the appellant No.4 had hit on the

head of his brother with a piece of stone(puta) when his brother

became senseless. PW8, the wife of the victim during her chief

examination has corroborated the versions of the other

witnesses in regard to the fact that after being informed by

Suman Miah her parents-in-law along with other relatives had

rushed to the place of occurrence to save her husband. She has

deposed that she came to know from her parents-in-law,

brother-in-law and sister-in-law, that the appellants along with

others had assaulted her husband.

17. The learned Addl. Sessions Judge having considered

the evidences and materials on record had acquitted 9(nine)

accused persons out of 13(thirteen) against whom charge-sheet

was filed charges were farmed. We find no fault in the findings

arrived at by learned Addl. Sessions Judge while convicting and

sentencing the appellants herein.

18. We have given due importance to the submission of

learned senior counsel appearing on behalf of the appellants that

the Court should refrain from placing reliance upon the

evidences let in by the related witnesses of the deceased.

According to learned senior counsel, the related witnesses are

naturally the interested witnesses. We find no legal support

behind the submission of the learned senior counsel. A related

witness does not necessarily be an interested witness, rather,

according to us, the parents, wife, brothers and sisters are the

most natural witnesses. In this context, we may profitably rely

upon a decision of the Hon'ble Supreme Court rendered in State

of Rajasthan vs. Smt. Kalki & Anr., reported in (1981) 2

SCC 752 where a three Judge Bench of the Apex Court held

that: [SCC p.754, para 7]

"7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an "interested" witness. She is related to the deceased. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the

decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested". In the instant case PW 1 had no interest in protecting the real culprit, and falsely implicating the respondents."

19. True it is, that a court should scrutinize and

appreciate the evidence of a related and interested witness

having an interest in seeing the accused punished and also

having some enmity with the accused with greater care and

caution than the evidence of a third party disinterested and

unrelated witness.

[Emphasis supplied]

20. Keeping in view the aforesaid principles, in the case

in hand also, we have given our bird's eye view to the evidence

of the related witnesses, i.e. PW1(uncle of the deceased),

PW3(sister of the deceased), PW5(mother of the deceased),

PW6(father of the deceased), PW7(brother of the deceased),

PW8(wife of the deceased), PW9(son of the sister of the

deceased). Noticeably, PW2 Gobinda Das and PW4 Suman Miah

are not in any way related to either the accused persons or

deceased Shahjahan. As such, they are disinterested and

unrelated witnesses to the instant prosecution case. Now the

fact that PW4 after seeing Shahjahan being assaulted by the

accused persons had rushed to the house of deceased

Shahjahan and informed his relatives(i.e. the related witnesses)

has been proved beyond reasonable doubt since this part of

evidence of PW4 remains unshaken. Further, this evidence of

PW4 makes the fact that the above related witnesses had rushed

to the scene of crime, and their presence therein witnessing the

incident of assault, more natural and possible. No parents, wife,

brothers and sisters can desist themselves but to rush to the

scene of offence to save the life of their loved ones. The defence

has not been able to make out a case that there was any enmity

between the family of Shahjahan and that of the appellants or

they have any interest to falsely implicate the appellants with

the crime and to see them punished.

21. In normal course of human behaviour or instinct, a

close relative would be the last to screen the real culprit and

falsely implicate an innocent person. While dealing with the

evidentiary value of the related witnesses, Vivian Bose, J

speaking on behalf of a Three-Judge Bench in the case of Dalip

Singh & Ors. vs. State of Punjab, reported in AIR 1953 SC

364, had observed thus:

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real

culprit and falsely implicate an innocent person. It is true when feelings run high & there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

Again, the learned Judge had observed that a Judge

in a particular case can, for special reasons to that case and the

witness, say that he is not prepared to believe him unless

corroborated because of his general unreliability or for other

reasons but unless there are such special facts he cannot do so

on a supposedly general rule of prudence enjoined by law, as

the case of accomplices. [ Emphasis supplied ]

22. Hon'ble Supreme Court in Ganapathi & Anr. vs.

State of Tamil Nadu, reported in (2018) 5 SCC 549, had held

that:

"15. Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same

has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made [See: Maranadu v. State, (2008) 16 SCC 529 : (2010) 3 SCC (Cri) 338]."

23. Following the afore-discussed principles, we can

easily hold that merely a witness is closely related to a victim of

crime does not ipso facto makes him an interested witness.

Added to it, we find that the statements of the aforesaid related

witnesses of the deceased made before the investigating officers

and their depositions before the court are all along consistent.

There is no material improvement/ exaggeration, least to say,

the contradictions. The evidences of the aforesaid related

witnesses appear to us as spontaneous, credible and

trustworthy. The above factors have made the related witnesses

more reliable inspiring the confidence of this Court.

24. PW2, Gobinda Das also is a resident of the same

locality. He is not related to the deceased Shahjahan or any of

his family members. We have no reason to disbelieve his

statements, which he has made in his chief examination that on

the fateful evening while he was returning home he saw the

deceased, Shahjahan was being beaten by Majid Miah, the

appellant No.1 and Lutha @ Md. Rafiq Miah, the appellant No.2

along with another one whose name he could not recollect. He

tried to save Shahjahan but he had fallen on the road and

started making hue and cry. He has further stated that he

parked his cycle on the roadside and went to the house of

Khurshid Miah where he had seen Shahjajan lying down on the

courtyard with bleeding injuries. In his cross-examination he

denied the suggestion put forth by the defence that Majid Miah

and Lutha did not beat the injured Shahjahan.

25. In addition, as emanated from the records, the

postmortem report and the evidence of doctors also corroborate

the injuries sustained by the deceased.

26. In the light of above analysis of the evidences and

materials on record, we find no reason to disturb the findings of

the learned Addl. Sessions Judge, and consequently, the

judgment of conviction and sentence passed against the accused

persons are hereby upheld and affirmed. The appeal is

dismissed.

             JUDGE                                  JUDGE