High Court · 2012

On completion of the trial, the learned Sessions Judge convicted and sentenced the accused/appellants as aforesaid, giving rise this appeal from jail. It may be mentioned that out of 5 accused persons, facing the trial, acc used Mamud Ali and Abdul Barek were acquitted by the learned Sessions Judge, sin ce the prosecution failed to prove the accusation against them beyond all reason able doubt. 7. Learned counsel for the appellant vehemently submitted that the accused/appellant have been convicted u/s 302 r/w Section 34 IPC, but no evidenc e is forthcoming regarding specific part/role played by the accused/appellants i ndividually. Learned counsel pointed out that in case of victim Barak Ali there was a cut injury on his person, but witnesses did not specify as to who had inf licted the cut injury on his person. Learned counsel submitted that if the deat h of the deceased was due to one cut injury on his persons then other accused pe rsons, who have been convicted for causing death of Barek Ali, did not assault t he deceased. Learned counsel pointed out that since it was dark and there was a huge public gathering in the market area, the identification of the accused/app ellant in the darkness was improvable proposition. Learned counsel further subm itted that independent witnesses did not support the prosecution story and only the witnesses who are relations of the victims deposed against the accused/appel lants. In reply to above, learned PP submitted that the prosecution sid 8. e has been able to establish the charges against the accused /appellants beyond all reasonable doubt and therefore, conviction and sentence passed by the learne d Sessions Judge do not call for interference of this Court. 9. In order to appreciate the arguments advanced by the parties, we would like to examined the core of the prosecution evidence: PW.1, Md. Abdul Kader, the first informant, was present in the m 10. arket when the occurrence took place. On getting the information of the incident , he reached the place of occurrence and saw Abdul Motin being carried to the h ospital o a push-cart and 2 legs were severed. PW.1, enquired Motin as to who had committed the offence. PW.1 was told by the people accompany Abdul Motin t hat the accused person have committed the offence and little later he found Abdu l Motin was lying dead at the place of occurrence. PW.1 rushed to the Naoboish a out-post and verbally informed the occurrence to the police. According to PW. 1, Abdul Motin succumbed to his injuries in the hospital after 2 days of the oc currence. 11. PW.2, Md. Iman Ali, is not an eye witness of the occurrence. He came to the place of occurrence and found Abdul Motin lying dead in the place. PW.2 also found injured Abdul Barek, who was being taken to hospital for treat ment. Though PW.2 met the deceased Abdul Motin but he did not asked anything a bout the incident. PW.2 stated in his deposition that the deceased was a vetera n criminal. 12. PW.3 (Md. Abu Khalid Mahibul Islam) and PW.4 (Md. Amza Ali) were also not eye witnesses to the occurrence.

13. According to PW.5, Md. Abbas Ali, he along with Abdul Barek , Mo tin , Malek, Din Islam and Babul were returning home from the Borsola market by riding on their respective bi-cycles. When they reached Rajgarh Tinali, Abbash, Subed, Harej, Samed and Abdul Barek along with one unknown person were coming o ut from a shop. At that time Abdul Barek asked injured Abdul Motin to stop the re and had beaten Abdul Motin by means of a lathi. In the meantime, accused A bbash injured Abdul Motin on leg. Sustaining lathi injury Abdul Motin ran fro m there but he was caught by the other accused persons and he was beaten up ther e. By seeing this, PW.5 fled away from the place of occurrence. During cross examination, PW.5 stated that it was the accused Su bed Ali and not the accused Abdul Barek, who had asked Abdul Motin to stop in t he place of occurrence. During cross examination PW.5 denied the suggestion give n to him that he did not stated before the Investigating Officer that he had see n the accused Abdul Barek beating the injured Abdul Motin by means of lathi. However, PW.12, the Investigating Officer (Ramesh Sarma, S.I.) s tated that Abbas Ali, PW.5 had never stated before the investigating authority t hat he had seen Abdul Barek injuring the deceased Abdul Motin by means of a lat hi. 14. Though PW.6, Babul Islam deposed that at the time of occurrence, he along with injured, Abdul Barek and Abdul Motin , Md. Abbas Ali, Md. Din Isl am and Abdul Malek were returning from Brosola market to their respective reside nces. Abdul Malek was going by sitting in the carrier of Abdul Barek ad Md. Di n Islam was going by sitting in the carrier of Abdul Motin. While they arrived Rajgarh Chariali, accused, Md. Subed Ali had asked Abdul Motin to stop there. M eantime, accused, Md. Abbas Ali and Mr. Harej Ali came out from the shop of accu sed, Md. Abbas Ali had injured Abdul Motin and accused Md. Harej Ali had injured Abdul Barek on their legs by inflicting dao injuries. Sustaining injury, Abdul Barek fell down there, but Abdul Motin ran away therefrom but he was caught by the accused near the house of accused, Md. Mamud Ali and all the 3 accused had b eaten Abdul Motin there. Seeing this, PW.6, Md. Abdul Islam and his brother, Md . Kasem , who was with him in his bicycle, were therefrom. PW.6 deposed that Ab dul Barek died on the spot and Abdul Motin dies in the North Lakhimpur hospital. PW.6 deposed that he could not recognized the other person, who was with accus ed, Md. Subed Ali, Hd. Harej Ali and Md. Abbas Ali. During cross examination, PW.6 deposed that due to darkness, he could no t recognize the other person, from which it is transpired that he ad only recogn ized the accused, Md. Subed Ali, Md. Harej Ali and Md. Abbas Ali.

15. PW.7, Din Islam, deposed that at the time of occurrence, he alon g with accused persons were returning home from the Borsola market to their res idence. He was proceeding in the bicycle carrier of Abdul Motin on his bicycle . Abdul Malik was propelling on Abdul Barke’s bicycle. When they arrived at Raj garh Tiniali, accued Abbash came out from Haresh Ali’s shop and injured Abdul Mo tin by means of a sharp weapon. Sustaining cut injury Abdul Motin ran away fro m there. By seeing the incident, this PW.7 ran away from the place of occurrenc e, out of fear. PW.7 stated that he did not recognize other accused persons. 16. Dr. Pabitra Chetia, PW.8 deposed that he had performed post mort em examination over the dead body of the deceased, Abdul Barek on 6.8.2005 at No rth Lakhimpur Civil Hospital, as produced by Maoboicha out-post in connection wi th Naoboicha out post GD Entry No. 97 dated 5.8.2005. During his post mortem ex amination, he had found the following injuries upon the person of the said decea sed as follows: Left leg of the deceased was found amputed at 8cm above left ankle joint. The w ound of the amputed part was incised looking of sizes 6cm x 4cm. A clean bevele d sharp cut was seen in the both bone of the leg. The muscles, major bllod vess els were also damaged through and through. The detached part was also seen with the same injury. The injury was ante mortem in nature. To him, cause of death was due to shock and haemorrhage due to the injuries sust ained. To him, the injury sustained by the deceased is sufficient in ordinary c ourse to cause the death of the deceased, though timely treatment could have sav ed the injured. 17. PW.9, Abdul Malek, deposed that at the time of occurrence he alo ng with Babul, Din Islam, Abbash, Barek and Motin was coming home from Borsola market on their respective bicycles. PW.9 corroborating the testimonies of oth er witnesses deposed that accused Subed Ali asked Motin to stop and all of the accused persons got down from their bicycles. According to PW.9, accused Haresh Ali , Abbash Ali, Abdul Barek, Mahmud Ali and one unknown person came out from the nearby shop and accused Haresh Ali dealt a lathi blow on Motin . Sustaining lathi blows Abdul Motin ran from there. In the meanwhile, accused Abbas Ali in jured the deceased on leg with a dao. Due the assault, Abdul Motin fell down t here. PW.9 tried to tie a gamosa upon the injury of Abdul Motin . Then, he saw that Motin was charged and assaulted by the accused persons at which he fell d own. Seeing this, PW.9 also fled away from the place of occurrence. The investigating officer in his cross examination proved that PW.9 had never stated before him during investigation that Harej Ali had beaten Abdul Mot in by a lathi. This statement was confronted to the deposition of PW.9, who dep osed that witness Abdul Malek had never stated to him that accused Md. Harej Ali had beaten Abdul Motin with a lathi.

18. PW.10, Dr. Rup Kumar Phukan, who performed the post-mortem exami nation of the deceased Abdul Motin in the civil hospital, found the following i njuries: (cid:28)1. Sharp cut in the lower limbs, left leg at about 1 (cid:29) above the ankle joint cau sing complete detachment of left foot from left leg. Both leg bones, skin, soft tissues and vessels were cut through causing extensive haemorrhages, skin margi ns. All wounds were sharp and retracted. Muscles, ligaments vessels were also retracted. 2. Sharp cut right leg, about 2 (cid:29) in size at the anterior part at the junction of upper and middle thread. It was obliquely placed and causing cut in the skin , cut and fracture of right tibia and medid part of calf muscle and vessels and c aused bleeding. 3. Another sharp cut in middle thread of right leg about 2 (cid:29) in size placed in an terior medid part, outer skin, caused cut and fracture of right tibia, causing s ufficient haemorrhage. It is also cut the calf muscles. 4. Sharp cut on the lateral side of the right ankle causing sharp cut obliquely down. It was also about 3 ‰ (cid:28) in size causing about 2/3rd separation of ankle o f the right foot. The skin, lower end of fibule ligaments and muscles and vesse ls and upper part of calcenous bone was cut through, causing anterior haemorrhag e. (cid:29) The Medical Officer opined that cause of death of the deceased w as due to shock and haemorrhage as a result of the injuries sustained by him. T o the Medical Officer, all the injuries were sufficient together to cause the de ath of the deceased in its ordinary course. 19. Thus, the medical evidence given by the PW.8 and Pw.10 had confi rmed that the death of the deceased, Abdul Motin and Abdul Barek was due to inju ries sustained by them on their persons. 20. PW.11, the I/O, Sri Ajay Rajkhowa deposed that as per direction of the then Officer-in-Charge of North Lakhimpur police station, he caused the i nquest over the dead body of the deceased, Abdul Motin through the learned Execu tive Magistrate. The said inquest report was exhibited by him as Exht.9. 21. PW.12, Ramesh Sarma, the I/O of the case stated that the accus ed persons surrendered in the police station with weapons of assault. However, he clarified that 3 accused persons, who had surrendered with the incriminating weapons at Naoboisa police station. At the time of cross examination, the I/O, PW.12 was quizzed whether all the 3 accused persons had surrendered with the wea pon of assault. 22. Thus, P.W.5, Md. Abbas Ali deposed that all the accused were inv olved in beating and injuring the injured, Abdul Motin , but P.W.6 deposed that it was accused, Md. Subed Ali, Md. Abbas Ali and Md. Harej Ali, who were involve d in beating and injuring Abdul Motin and Abdul Barek. Thus, P.W.6 had excluded the other two accused, namely, Md. Mamud Ali and Md. Abdul Barek. To P.W.6, it was accused Md. Harej Ali, who had injured Abdul Barek on his legs and it was ac cused, Md Abbas Ali who had injured Abdul Motin on his legs by inflicting dao i njuries. 23. PW.7 Md. Din Islam deposed that he had seen accused, Abbas Ali i njuring Abdul Motin on the legs by means of dao. From the evidence of PW.7, it transpires that sustaining injury, when Abdul Motin ran away therefrom, PW.7 als o fled away from that place in fear. So, he had not seen who in fact injured Ab dul Barek and who had beaten injured, Abdul Motin. On the other hand, PW.9, Md. Abdul Malek had implicated all the 24. five accused of this case for committing the alleged offence. To him, it was ac cused, Md. Harej Ali, who had injured Abdul Motin by means of lathi and it was a ccused, Md. Abbas Ali , who had injured Abdul Barek on the legs by means of ’dao ’. All these witnesses, PW.5, PW.6 and PW.9 deposed that when Abdul Motin after sustaining injury had fled away from the place of occurrence, he was caught by the accused and assaulted, and seeing this, all the witnesses had fled away from the place of occurrence. Thus, on scrutiny of the evidence of P.W.5, P.W.6, P.W.7 and P.W 25. .9, it is transpired that the involvement of accused Md. Harej Ali, Md Abbas Ali and Md. Subed Ali in committing the alleged offence was proved by these witness es, P.W.5,P.W.6, P.W.7 and P.W.9. 26. D.W.1, Md. Jahed Ali deposed that just at the time of sunset, he was taking tea in the Tea Stall of Ahed Ali situated at Borsola Market and alon g with him accused Md. Abbas Ali, Md. Abdul Barek and Md. Harej Ali were there a nd after taking tea, accused Md. Abbas Ali, Md. Abdul Barek and Md. Harej Ali we nt away therefrom. After almost 10 minutes of the departure of these three accus ed, he heard about the occurrence. But, during cross-examination, D.W.1 deposed that he had no kn owledge, whether accused Abdul Barek, Md. Harej Ali and Md. Abbas Ali came to t he Tea Stall on bicycles. DW.1 also deposed that he did not know where had thes e accused gone after leaving the Tea Stall. To him, the place of occurrence was at a distance of 1 k.m. from the Tea Stall, where he along with accused Md. Hare j Ali, Abdul Barek and Md. Abbas Ali were taking tea. D.W.1 deposed that he did not know whether these three accused were amongst the people, who had gone to t he place of occurrence after hearing about the occurrence. Thus, DW.1 could not show that at the time of occurrence, accused, Md. A bbas Ali, Abdul Barek and Md. Hareji Ali, were present at Borsola market or not. Therefore, evidence adduced by DW.1 could not be help to the accused.

27. From the evidence of P.W.1 Abdul Kader, it is transpired that he got information about the involvement of all the accused at the place of occurr ence and then he went to the concerned Naoboicha Outpost to inform about the oc currence. But he had not disclosed to the I.O.(P.W.12) about the involvement of all the five accused as heard by him, is not understood. Not disclosing by P.W.4 in the written FIR (Ext. 4) lodged by him that he heard from the injured, Abdul Motin that it was all the five accused, who had injured him and Abdul Barek at the place of occurrence seems to be suspicious. P.W.4, Md Amzad Ali is related brother of both the deceased. On the other hand, why P.W.1 and 2 had not disclos ed to P.W.3 whom they met on the way to the Nowboicha OP that they heard about t he involvement of all the five accused of injuring Abdul Motin and Abdul Barek , is not understood. As discussed earlier, P.W.5 Md. Abbas Ali could not prove t hat he had actually seen accused Abdul Barek in beating Abdul Motin by means of lathi. From the evidence of the eye witnesses, it is transpired that wh 28. en the injured, Abdul Motin and Abdul Barek along with P.W.5, P.W.6, P.W.7 and P .W.9 had arrived at the place of occurrence by riding on bicycles, accused Md. S ubed Ali asked Abdul Motin to stop there and thereafter all the three accused, n amely, Md. Subed Ali, Md. Harej Ali and Md. Abbas Ali has injured Abdul Motin an d Abdul Barek. As a result of the brutal attack Abdul Barek died on the spot, a nd Abdul Motin succumbed to his injuries. 29. From the evidence of the eye witnesses, it transpires that ther e is pre-concerted plan amongst the accused, Md. Subed Ali, Md. Harej Ali and Md . Abbas Ali to injure Abdul Motin and Abdul Barek and in furtherance of their co mmon intention they had injured Abdul Motin and Abdul Barek by means of sharp we apons, for which both the injured succumbed to their injuries. Moreover, from the evidence of the eye-witnesses, all the accused/appellants before us were fo und assaulting and severely injuring both the deceased. Evidence of PW.5, PW.6 and PW.9 clearly depicted the gruesome murder of the deceased by the accused abo ve named. 30. tate of Uttar Pradesh v. Naresh, (2011) 4 SCC , which reads as under: 30. In all criminal cases, normal discrepancies are bound to occur in the deposi tions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at t he time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also ma ke material improvement while deposing in the court, such evidence cannot be saf e to rely upon. However, minor contradictions, inconsistencies, embellishments o r improvements on trivial matters which do not affect the core of the prosecutio n case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witnes In this regard we may refer the decision of the Apex Court in S s and record a finding as to whether his deposition inspires confidence. (cid:28)9. Exaggerations per se do not render the evidence brittle. But it can be one o f the factors to test credibility of the prosecution version, when the entire ev idence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dub bed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material parti culars i.e. go to the root of the case/materially affect the trial or core of th e prosecution’s case, render the testimony of the witness liable to be discredit ed. [Vide State v. Saravanan , (2008) 17 SCC 587 Arumugam v. State , (2008) 15 SCC 590 Mahendra Pratap Singh v. State of U.P. (2009) 11 SCC 334 and Sunil Kum ar Sambhudayal Gupta (Dr.) v. State of Maharashtra . (2010) 13 SCC 657] 31. There are some minor contradictions in the statements of witness es in regard to the fact as to the weapon of assault and in the sequence of ev ents. All the witnesses afore noted i.e. P.W.5, P.W.6, P.W.7 and P.W.9, who had accompanied the deceased, have affirmed in one voice that both the deceased were waylaid and brutally assaulted by the accused, as a result of which both of the m died. The fact of assault had been affirmed by all the eye witnesses. In vi ew of the above, minor contradictions in the statements of witnesses becomes i mmaterial. It is evident from the materials available on record that the incid ent took place in presence of the eye witnesses’ and there is no reason to disbe lieve their honest and natural testimony. 31. So, summing up the above discussions and considering the same wi th utmost care and caution, we are of the opinion that the prosecution could pro ve the accusations u/s 302/34 IPC against the accused/ appellants above named beyond all reasonable doubt.

32. 33. In the result, the appeal stands dismissed. Send back the LCR.