Judgment · High Court · 2009

#14. PW 9, Sri Thaneswar Sharma, is an Inspector of the CID who had also inve stigated the case and had examined the same persons who were earlier examined by PW 7, Somnath Bora. This witness in cross-examination had admitted that the sta tement of the persons examined by PWs 7 and 8 in course of the investigation und ertaken by them were, once again, recorded by him and no further witness was exa mined.

#15. DW 1, Siraj Ali, who has been named in the FIR as one of the eye-witness es had stated in his deposition that on the date of occurrence at about 7.00 A.M . he was having tea in the Kalia hotel along with Taher Ali (PW 1). According to this witness, deceased Keramat was also having tea at that time. DW 1 had depos ed that accused Abdul Hai (since deceased) and two other unknown persons came to the hotel and Abdul Hai had dealt several blows in the abdomen of deceased Kera mat with a sword. In his deposition he had stated that out of fear he came out f rom the hotel and at that time he did not see any other accused persons; neither did he see any of the member of the deceased Keramat’s family. This witness had deposed with regard to rivalry over property between the deceased Keramat and t he accused Abdul Jalil and Mufizuddin. In cross-examination this witness had cat egorically stated that at the time of the incident there were four other custome rs in the hotel and that he did not hear any gun shot.

#16. The learned Sessions Judge after a threadbare consideration of the evide nce adduced by the parties, the core of which has been noticed above, came to th e conclusion that the said evidence conclusively pointed to the guilt of accused Abdul Hai who, however, had died during the pendency of the trial. Insofar as t he other accused are concerned, the learned trial Judge was of the view that the evidence tendered by PW 3 should be accepted only after a close scrutiny as he is the son of the deceased and also an accused in the case involving the killing of accused Abdul Hai. For the same reason i.e. relationship with the deceased a s also the fact that his son was an accused in the same case, the learned trial Court did not readily accept the evidence tendered by PW 4, Sorhab Ali. Similarl y, the learned Sessions Judge recorded the finding that PW 6, Mujammil Hussain, being related to the deceased, his evidence should be carefully scrutinized. Suc h scrutiny, according to the learned Sessions Judge, revealed that PW 6 had not stated before the police that the accused Giasuddin, Samsul Haque and Abdul Jali l had instigated the other accused. Further, PW 6 had stated that all the accuse d were armed which statement was not supported by the evidence of PW 3 and 4. Th at apart, the learned Sessions Judge also took note of the fact that the evidenc e of PW 5, Dr. Mubidur Rahman, though had revealed that a number of injuries cau sed by sharp pointed weapon was found on the body of the deceased, PW 5 had clea rly stated that there was no gun shot injury on the deceased. The fact that all the eye-witnesses had reported the use of a gun shot and the said firearm was no t seized in the course of the investigation were considered to be other relevant circumstances which should be relied upon in determining the culpability of the accused. On the aforesaid basis the learned Sessions Judge had thought it prope r to hold that apart from accused Abdul Hai who was dead, the prosecution had su cceeded in proving the involvement of accused Mofizuddin Islam and Abdul Rahim F aruqi in the crime. Accordingly, the aforesaid two persons were convicted wherea s the remaining five accused, namely, (1) Abdul Jalil, (2) Abdul Rashid, (3) Gia suddin Muktar, (4) Samsul Haque and (5) Imdadul Islam i.e. the respondents in th e appeal were acquitted on the benefit of doubt. The other remaining accused i.e . respondent Rahul Amin was already declared an absconder.

#17. The acceptability of the evidence tendered by PWs 3, 4 and 6 who are rel ated to the deceased is the first issue that will require consideration of the C ourt. There is no law that the evidence of a relative of a deceased person canno t be acted upon by the Court in determining the culpability of the accused. Howe ver, as a matter of prudence evidence of such witness are scrutinized by the Cou rts with extra care and caution to exclude interested and tainted evidence from being relied upon. The availability of disinterested witnesses and non-examinati on of such disinterested witness by the prosecution without there being any expl anation, is one circumstance against relying on the evidence tendered by relativ es of the deceased. The inherent credibility or intrinsic worth of the evidence tendered by the relatives of the deceased; the consistency of the statement made by them if there are more than one such witness and the inherent contradictions , if any, between the evidence tendered by such witnesses are other aspects that must receive the Courts consideration before the Court proceeds to rely on the evidence of such witnesses. In the present case though the evidence of PW 3 as well as DW 1 is capab 18. le of suggesting that other persons, not related to the family of the deceased, were at the place of occurrence and the prosecution had offered no explanation f or not examining such witnesses, the said lacuna in the prosecution case, by its elf, cannot be understood to be fatal. The other tests laid down above, which ar e by no means exhaustive, will have to be applied and the cumulative result of a ll such tests will have to be considered by the Court before any decision to act or not to act on the evidence tendered by the PWs 3, 4 and 6 is finally arrived at by the Court.

#19. In the FIR filed by PW 3 on the very day of the occurrence the involveme nt of all the accused have been clearly stated. The said version unfolded by the witnesses in the trial therefore found manifestation in the earliest version of the case. The cross-examination of PW 1 clearly reveals that the son of the dec eased Nazrul Islam (PW 3) and other members of the deceased’s family were presen t at the place of occurrence when the incident took place. In this regard it wou ld be significant to note that PW 1 had not fully supported the prosecution vers ion. The presence of PWs 3, 4 and 6 at the place of occurrence when the incident took place, therefore, can be accepted. The evidence of PW 7 (I.O.) that PWs 3 , 4 and 6 had come to the place of occurrence after the inquest over the dead bo dy was completed is capable of being understood on the basis of the evidence of the said witnesses who had clearly deposed that on being threatened by some of t he accused they had left the place of occurrence only to return later along with other persons. A reading of the evidence of PWs 3, 4 and 6 reveals a fair amoun t of consistency and uniformity showing the involvement of all the accused inclu ding the present respondents. The instigation by the accused Giasuddin, Samsul H aque and Abdul Jalil; the firing by accused Abdul Rashid; the assault by the acc used Rahul Amin, Imdadul, Mufijuddin and Abdul Rahim Faruqi, the threat given to PWs 3, 4 and 6 by accused Imdadul stands fully established. The absence of any gun shot injury on the body of the deceased is capable of being understood by th e evidence of PW 3 who clearly stated that though a gun was fired at the decease d he did not know whether the shot had hit the deceased or not. In the above cir cumstances, the Court is of the view that it would be a travesty of justice to r eject the evidence of as many as three eye-witnesses merely on the ground that t he said witnesses were related to the deceased. The evidence of the aforesaid th ree eye-witnesses indicate the clear involvement of the present respondents in t he incident leading to the death of Keramat Ali though on the evidence on record the precise role of any of the accused-respondents in inflicting the fatal inju ry/injuries is not very clear. The question, therefore, is whether the accused-r espondents can still be held liable for commission of the offence under Section 302, IPC. If the evidence adduced by the prosecution witnesses that all the accuse 20. d had come to the place of occurrence in one group and three of them i.e. Giasud din, Samsul Haque and Abdul Jalil had asked the other accused to catch hold of t he deceased Keramat whereafter the other accused had entered the hotel and an as sault took place leading to the death of Keramat, which evidence the Court is in clined to believe, there can be hardly any manner of doubt that the common inten tion of the accused to cause the death of Keramat stands established. However, i n the charge framed against the accused they were not charged for commission of the offence under Section 302 read with Section 34 of the I.P.C.

#21. In State of Orissa vs. Arjun Das Agarwal and another, reported in AIR 19 99 SC 3229, it has been held by the Apex Court that (cid:28)Section 34 does not create a distinct offence and it is the participation of the accused that the intention of committing crime is established and Section 34 IPC is attracted. To rope in a person with the aid of Section 34 IPC, prosecution has to prove that the crim inal act was done by actual participation of more than one person and that the s aid act was done in furtherance of common intention of all engaged at a prior co ncert. (cid:29)

#22. We are conscious of the fact that in the present case the Court has been called upon to decide the culpability of 5 (five) of the accused Respondents fo r the death of one single person, in addition to the two other accused who have already been found to be guilty. However, on due consideration of the evidence a nd materials on record we are left with no option but to take the view that the judgment and order of acquittal of the accused/respondents passed by the learned Sessions Judge suffers from fundamental errors which would need correction at t he hands of this Court. We, therefore, reverse the judgment under appeal insofar as the accused/respondents are concerned and convict each of the accused/respon dents for commission of the offence under Section 302 read with Section 34, IPC. Each of the accused-respondents is sentenced to undergo R.I. for life and to p ay a fine of Rs.2000/- each, in default, to suffer R.I. for six months more. The accused/respondents (1) Abdul Jalil, (2) Abdul Rashid, (3) Giasuddin Muktar, (4 ) Samsul Haque and (5) Imdadul Islam be taken into custody forthwith.

#23. hwith. In the result the appeal is allowed. Office to transmit the L.C.R. fort