Judgment · High Court · 2012

#7. During trial, the prosecution side has examined as soon as 8 (eight) witnesses in all to make out the charge, leveled against the accused persons. T he witnesses, so examined from side of prosecution, were cross-examined by the d efence at length. The statement of the accused persons under section 313 Cr.P.C. was recorded. In their statements under Section 313 Cr.P.C, accused persons, pa rticularly accused Namar Ali and Riaz Ali, took the stance that the case, afores aid, was fabricated one since the parties thereto were locked in a series of di sputes over some landed properties. 8. On being required, accused persons, however, did not adduce any ev idence. After hearing the learned counsel of the parties, Trial Court held the c ase guilty of the offence under section 302 read with 34 of IPC, convicted them accordingly and sentenced them to punishment and aforesaid. It is that the judgm ent which has been assailed here in this proceeding on the grounds as stated in the memo of appeal.

#9. The learned counsel for the appellant has argued that the judgment of the Trial Court is unsustainable in law as same is riddled with so many infirmit ies of extremely serious nature. However, learned Trial Court over looked all th ose infirmities and came to the conclusion that prosecution has successfully pro ved the charge under section 302/34 IPC against the accused persons and has conv icted them accordingly and sentenced them and aforesaid. 10. The infirmities, so pointed out by the learned counsel for the appellan ts, would be discussed at appropriate place as reproducing those alleged infirmi ties here would lead to repetition of the matter again and again. Suffice it to say that such a judgment, according to learned counsel for the appellants, has n o legal foundation at all and therefore, he submits that the accused persons may be acquitted of offence U/s 302 IPC on overturning the judgment of the Trial Co urt. 11. On the other hand, the learned counsel appearing for the State respondent quite arduously contends that the learned Trial Court has taken enormous pain i n analyzing the evidence on records in proper perspective keeping the allegatio ns leveled against the accused persons in view, and on proper marshaling the ma terials on records, it came to the conclusion that accused persons and none else committed the crime under consideration and accordingly, it has rightly convict ed accused persons under section 302/34 IPC and punished them as aforesaid. Such a judgment, therefore, invites no interference, whatsoever, from this court of appeal. 12. However, in order to appreciate the matter in dispute in proper perspect ive, we find it necessary to reproduce the evidence of PWs one by one and eviden ce of Doctor is first taken up for reproduction. Doctor, who examined the cadave r of deceased at Hailakandi Civil Hospital on 19th Feb.2001, was one Dr.K.Z.Chou dhury and he was examined as PW-6 13. According to Dr.K.Z.Choudhury on 19th February, 2001 he was at Haila kandi Civil Hospital. On that day, he examined the body of one Fakar Uddin Bharb huiya and found the followings: (cid:28)1. Circular lacerated wound of size 3 cm. 8mm diameter seen in the uppe r most part of the epigastrium in the region of xiphoid of the sternum. The skin on the edges of the wound is irregular and black in colour.

#2. One abrasion of size 2cm. x 2mm seen running horizontally from t he lower end of the above circular wound. The xiphoid is found fractured and bon e backwards. 19 Nos. of pellets of size 3mm. in diameter is recovered from the c hest wall in the region from the 7th rib to 10th rib of the right chest wall. 11 Nos. of pellets were recovered from the posterior chest wall and from the regio n of the 6th and 7th thorax vertebra. One plastic object of length 2.4 cm. with circular ends, each circular measuring 2 cm. in diameter was recovered. To circu lar ends are connected with four places each of which were found bend in the mi ddle. 3000 ml. of red liquid blood was collected from the meniastinum.

#3. joining central tendon of the diaphagm shows a hold of size 3.8cm. The pericardium on the interior surface of the left ventricle and the ad

#14. The right side of the interior part of the right ventricle shows a circu lar wound of size 3.8 cm. Six numbers of pellets average 3mm. diameter were reco vered from the muscle of the left ventricle. The circular wound of the upper abdomen was found continuous with a trac 15. t ending on the interior part of the right ventricle. The diameters of the hole tract was 3.8 cm. The edges of the skin wound are black showing signs of burning by gun powder. The muscle from the abdominal wall was also black and burnt by g un powder. In total 49 Nos. of pellets could be removed from the region of the wound and neighbouring tissues. The wounds are ante mortem in nature and caused by a shot gun pressed against the abdomen i.e. from the closest possible range. Even pellets removed were spread only after entering the abdomen. Presence of 30 00 ml. of liquid blood in the mediastinum shows that there was massive haemorrha ge from the cardial wound and death occurred very soon after infliction of infli ction of the wound.

#16. In the opinion of the Medical Officer, the death was due to haemorrhage following one gun-shot wound. 49 Nos. of pellets and the plastic obj ect were handed over to police for sending the same to Fire Arm Expert to ascert ain the specific of the shot gun used in this case. Ext. 2 is the post mortem re port; wherein Ext. 2(1) is the signature of the Medical Officer (cid:29).

#17. The defence made absolutely no effort to discredit the testimony, so rendered by Doctor. His evidence, therefore, coupled with the averments made in Ext.2, the post mortem examination report, have clearly established that the deceased died a homicidal death due to gunshot which he sustained on the right s ide between 7th and 10th rib. His evidence further reveals that he discovered as many as 49 nos.of pellets from the body of the deceased.

#18. On our perusal of the record, we have found that the case under conside ration presents certain complexities for our consideration and for our decisions thereon as well. Being so, we propose to reproduce the evidence of Investigatin g officer before reproducing the evidence of ocular witnesses and other none off icial witnesses. The investigating officer (Pw-7) was one Sh.Shusanta Nath Chou dhury, S.I. of Police. According to him, on 19.2.2001, he was working as Officer , attached to Hailakandi Police Station. Same day, the O.C., Hailakandi Police S tation, received the FIR (Ext. 1). On the receipt of the FIR, he registered a ca se thereon and ordered PW 7 to investigate the case. 19. In course of investigation, he visited the place of occurrence, held inquest on the dead body, recorded the statements of the witnesses, seized one l antern from the house of informant and sent the dead body to the Hospital for po st mortem examination. On being produced by the doctor, who conducted post morte m examination on the body of Fakar Uddin, he seized some pellets.

#20. As the investigation progressed, he also arrested the accused Riaz and Si fat Ali Barbhuiya. However, he could not arrest the accused Namar Ali since he was avoiding arrest and as such, on completion of the investigation, he submitt ed charge sheet under section 302/34 IPC against the accused persons showing M d. Namar Ali as absconder. 21. In his cross examination, PW7 is found to have stated that witness Mayaru n Nessa (PW-3) did not tell him that her daughter, PW-1, could recognize the acc used Riaz Uddin and Kuti, that the witness Anam Uddin (PW-4) did not tell him th at on the night at about 2.00 A.M. Selim Uddin (brother-in-law of the deceased ) came to him and told him that he went to his house and reported him about the alleged incident. 22. He also denied that the PW4 told him that the wife of Fakar Uddin told him that she (PW1) could recognize the assailants. In his cross examination, he has further stated that there was only one cot in the room on the night in quest ion. The suggestion that the accused Namar Ali has been residing at Baldabaldi f or last 20 years was denied by this witness.

#23. So situated, let us examine the evidence of those witnesses who claimed t o have seen the alleged incident on the night in question. They are PW-1, PW-2 a nd PW-24. PW-1 Musst. Alasun Nessa deposes that on the fateful night, at about 2 .00 A.M. she was sleeping in her house. Her husband was also there on that nigh t. They were sleeping in the same room. Around 2.00 A.M. some people came to the courtyard of their house and ordered her husband to open the doors.

#25. At first, she did not want to open the doors. However, on being advised b y her husband, she opened the doors--- as---- the persons outside their house cl aimed themselves to be the personnel from Police department. A lantern was burni ng in their room during such time. The moment, she opened the doors, three miscr eants, entered their house. She could identify 2 (two) of those miscreants. The other miscreant had his head covered with a Gamsa. However, from his voice, she could recognize him as accused Namar Ali. At that time, her husband was sleeping on a bed covering himself with a blanket.

#26. Accused Riaz Ali, however, removed the blanket from him. The moment Riaz took away the blanket from her husband, her husband uttered the word (cid:28)mama (cid:29) poin ting towards the third assailant. The moment her husband so uttered the word (cid:28)ma ma (cid:29), the third assailant fired at him with a gun. Such a turn of events frighten ed her so much so that she became unconscious.

#27. On the next day, in the morning, she came to know from her mother that on hearing hue and cry from her house, she started crying which caused the neighboring people to come to her house. Following day, in the morning, she lod ged an F.I.R. with Police. In her cross examination, she is found saying that he r mother resides in her own house which is situated in the close vicinity of the ir house, that her sister Mustt. Samsun Nessa (PW-2) also resides in her mothers’ house, that Namar Ali is the step brother of her mother, that her husband used to call accused Namar Ali as (cid:28)mama (cid:29) and that her husband own house is situated d istance of half a mile from the place of occurrence. 28. In her cross examination, she has stated that accused Namar Ali l eft from village in his early age and that house of the accused Riaz is situat ed distance of half of a kilometer from the house of Namar Ali. In her cross ex amination, she has further admitted that she could not fully recognize the man, who fired the gun shot at her husband as he had his head covered with a cloth, t hat after about one and a half years of the death of her husband, she married one Safik Uddin and that she did not know if a case has been initiated against h er present husband on the allegation of his committing decoity with other person s. 29. PW-2 Mustt. Samsun Nessa is a sister of PW-1. According to her, on the fa teful night, she was sleeping in the room where her sister (PW-1) was sleeping w ith her husband, since deceased. At night, somebody called the deceased and dire cted him to open the doors as the claimed themselves to be the personnel from po lice department. 30. At that time, a lantern was burning in their room. As soon as, the door s were opened, 3 (three) miscreants entered the room. Out of them, she could rec ognize Riaz and Kuti. The third one had his face covered by Gamsa. Before enteri ng their room, those miscreants enquired her sister if her husband was in their house on that night. Her sister replied in negative but the miscreants disbelie ved such reply. 31. On entering the room, those persons made a search for her brother-in-law and found him in the room aforesaid. Her brother-in-law, the deceased, then utt ered (cid:28)mama’ pointing towards the man who had his head covered. The moment her br other-in-law uttered the word ’mama’, why are you killing me, the man who had a mask on his face shot at her brother-in-law. They raised hue and cry for which n eighboring people gather there. 32. In her cross examination, Pw-2 has stated that on seeing the person, w ho dressed as Police personnel, she turned her back to them and as such, she cou ld not say, who those persons were who entered their house on that night, that h er sister reported incident to her, that the room where they were sleeping on th e night in question was of the size of 12 ft x 12 ft. The suggestion that her br other-in-law got injured near own house, that he was taken to the house of PW-1 subsequently were denied by PW-2. 33. PW.3 Musst. Mayarun Nessa is a woman of about 50 years of age. She dep oses that the house of PW -1 is situated just a distance of 20/25 cubits from he r house. On the night in question, she was sleeping in her own house. Around the midnight, she heard some people asking Fakar Uddin to open the doors of his hou se claiming themselves to be the personnel from Police department. She also hear d PW -1 telling those persons in the courtyard of the house of PW 1 that her hus band was not in his house. 34. Hearing such responses, persons, outside the house of the deceased, order ed the inmates thereof to open the doors or to face consequences for not doing t he same. On hearing the demands of persons outside, PW3 came out of her house t aking a lantern in her hand. In the meantime, she also heard a gunshot. The mome nt she reached the court-yard of the house of PW-1, a man whom she recognized as Namar Ali knocked her down on the ground and fled there from.

#35. As she got up and came inside the house of her daughter, she got the s mell of gun shot. She also found her daughter crying in disbelief and also seeki ng help. Many people gathered there by that time. She found her son in-law lyin g dead on the bed. Next day, in the morning, her daughter (PW-1) told her that s he could recognize Riaz and Kuti as being the miscreants but she could not recog nize the third one. 36. In her cross examination, PW-3 is heard saying that in her statement b efore the Magistrate and Police, she did not tell them that her daughter could r ecognize Riaz and Kuti. In her cross examination, she had ,however, clarified th at on the night in question PW-2 stayed in the house of the deceased although s he generally resides in her house (PW-2) and that there were 2 (two) beds insid e the room where incident in question occurred. Suggestion that her son-in-law w as assaulted near his old house and that he was carried over to the house of PW- 1 were denied by PW-3. 37. PW-4. Md. Anam Uddin Barbhuiya, deposes that on the fateful night at a bout 2.00 pm Md. Salemuddin , the brother in law of the deceased, came to his ho use and reported him about the incident in question. Hearing his brother bei ng killed, he rushed to the house of Fakar Uddin only to find him lying dead o n his bed. He also saw a huge bleeding wound on the chest of his brother. The w ife of the deceased told him that Fakar Uddin could recognize Riaz, Namar and Ku ti alias Sifat.

#38. She further told him that accused persons entered into their house an d caught hold of Fakaruddin and then shot him dead. As told by the wife of the d eceased, she could recognize the accused persons in the light of lantern. Police visited the place of occurrence and seized the lantern on the strength of seizu re list (Ext.1.). In his cross examination, he has stated that a series of disp utes were there between the deceased and the accused Namar Ali.

#39. The suggestion that after the death of Fakar, her present husband So fique Uddin and PW-1 were arrested by Police and were kept in police custody for a pretty long period was denied by PW-4. On the other hand, the suggestion that on being released on bail and on being pressurized by villagers, accused Sofiqu e married the wife of deceased and that he did not tell police that the wife of the deceased told him that she could recognize the accused persons in the light of lantern were also denied by PW-4. 40. PW-5, Samsul Hague Barbhuiya, is an advocate clerk, who works in the Hailakandi Bar Association. According to him, on 19.2.2001, PW-1 came to hi s house and requested him to write an FIR. Accordingly, on being told by her, he wrote the FIR (Ext.1) on 19.2.2001 at about 5 a.m. He came to know about the in cident in question only in the morning of 19.2.2001. 41. Above being the evidence on record, let us see how far such evidence make s out the charge brought against the accused persons. On the perusal of evidenc e of Doctor (PW-6) together with evidence of PW-1, PW -2, PW -3 and PW-4, it wo uld appear clear that on the night in question Fakar Uddin died a homicidal deat h and such death was occasion by gun shot which the deceased sustained in betwee n his chest and abdomen. It is also found evident from their testimonies that de ceased died instantaneously being so shot at his house. 42. Now, the question is who killed the deceased at his house on the nigh t intervening 17th and 19th day of February, 2001. The prosecution all along mai ntains that the deceased was killed by accused Namar Ali and he was so killed in furtherance of the common intention of all the accused persons, namely, Riaz Al i and Sifat Ali. In order to know how far such a claim stands established in vie w of materials on record, we, once again, very carefully scan the evidence on re cord. 43. On a perusal of evidence of PWs, particularly PW-1, PW -2 and PW -3, we have found that on the night of 17th February, 2001, three miscreants came to the house of deceased person and they ordered the inmates of the house of deceas ed to open the doors of their house. Quite hesitantly, the wife of the deceased opened the doors of their house as advised by her husband -since- those miscrean ts in the court-yard of the deceased introduced themselves as personnel from Pol ice department. 44. Their evidence also reveals that the moment, the wife of deceased opened the doors of her house, three miscreants entered her house, one of whom had his face covered by a gamsa. The other two persons did not have any kind of had cove ring on them. Such evidence also finds support from averment made in the FIR Ext .1.This aspect of the prosecution case was not challenged by defence either.

#45. In above back drop, let us consider, if on the night of 17.2.2001, the ac cused Md. Namer Ali, Md.Riaz Ali and Md. Sifat Ali had entered into the house th e deceased and if on that night, the accused Md. Namer Ali caused the death of t he deceased. We also need to know if accused Md.Namar Ali caused the death of th e person aforesaid in furtherance of common intention of all accused persons.

#46. In search of answers to the above queries, we scaned the evidenc e on record more and more. On inspecting the evidence on record very carefully, we have found that in her evidence, PW-1 very emphatically stated that three mis creants entered her house on the night aforesaid. Though one of them had his hea d covered with gamsa, other two miscreants did not have any such covering and as such, she could recognize the other two persons as being Riaz Ali and Sifat Ali and she did so in the light of lantern which was burning during the time of the consideration. 47. PW-2 also claims that on the night in question, she was in the house of the deceased and was sleeping in the same room where deceased with his wife (PW -1) was sleeping on that eventful night. Well beyond midnight, they woke up from their sleep, as, they heard some people ordered the inmates of the house to o pen the doors identifying themselves as personnel from Police department. As soon as her sister opened the doors of her house, 3 miscreants entered their house.

#48. One of them covered his head with a gamsa while other two did not have any kind of covering on their face. She recognized those two miscreants as Riaz Ali and Sifat Ali. The evidence of PW-1 and PW-2, coupled with averment made in FIR, clearly demonstrate that the aforesaid PWs could very well recognize accuse d Riaz Ali and Sifat Ali. 49. However, the evidenced, so tendered by PW-1, PW-2, on the point of thei r recognizing the accused Sifat Ali and Riaz Ali in the house of a deceased on t he night in question, particularly the evidence of PW-2, comes under sharp attac k for the reasons more than one. In the first place, it has been pointed out that in her cross examination, PW-2 stated that having seen some police pers onnel entering into their house, she turned her back towards them and as such, s he could not recognize the goons who entered the house of the deceased on the ni ght in question. 50. Secondly, it has been contended that according to PW-7, the I.O. of the case, there was only one cot in the room where deceased was killed on the night aforesaid. This clearly shows that the claim of PW-2 that she was in the house of deceased on the night in question and that she witnessed the incident questi on are nothing but a blatant lie and as such, the defence urges this court not t o place on reliance on the testimony of those two witnesses as far as their reco gnizing the accused Riaz and Sifat Ali is concerned. ion case.

#51. However, such arguments could cut no ice in demolishing the prosecut It is true that in her cross examination, the PW-2 stated that the moment, she saw some persons dressed as police personnel entering into thei r house, she turned her back to them and as such, she could not recognize them. However, one should not overlook fact that PW-2 found enough time to watch those miscreants till the time she turned her back to them.

#52. Thus, one must not read too much in her statement that she could not re cognize the miscreants since on seeing the miscreants, she took them to be poli ce personal and took her eyes away from them, more so, when PW 2 or for that mat ter other PW 1 and PW 3 have long standing acquaintance with the accused persons , when they were admittedly locked over some disputes over a very long period o f time and when they seem to have the capability to recognize accused persons ev en by their appearance due to the long standing association. 53. In so far second allegation is concerned, one should not attach too much weight to the evidence of PW-7 that there was only one cot in the room where de ceased met his death on the night in question. This is because of the fact that the evidence of PW-7, on the point of cots in the room of the deceased, cannot b e read in isolation keeping other evidence, tendered on this count, beyond consi deration. Rather the testimonies of other PWs, the testimony of PW3 in particula r, are to be read alongside. 54. On doing so, we have found that PW 3 quite categorically stated that on the night, eventful, her daughter (PW-2) too slept in the house of the deceased , and that too, in the room where incident under consideration occurred. It is a lso in her evidence that PW-2 generally resides in her house which is situated i n the close vicinity in the house of the deceased. There is nothing on record to show that above evidence of PW3 was not reliable for any reason, whatsoever. 55. A conjoint reading of evidence of the PW3 together with the testimoni es of other PWs very firmly shows that on the fateful night, PW 2 was there in t he house of the deceased and that she along with PW 1 witnessed what had occurre d there in the house of later on the all eventful night. In the face of such dis closures, second allegation aforesaid too is found unequal to the task, assigned . Consequently, same could not cause any harm to the prosecution case. 56. This brings us to yet another very important chapter of the prosecution case where we are to see if prosecution could establish the involvement of accus ed Namar Ali in the incident under scrunity. On the perusal of the record , we h ave found that the prosecution has heavily relied on the testimony of the PW 1 and PW 2 who claim that the moments before his death the deceased uttered the wo rd ’Mama’ pointing towards the 3rd miscreant who entered the house of deceased o n the night aforesaid. But the question-is---- whether the miscreant whom the deceased so addre 57. ssed as ’Mama’ was accused Md. Namar Ali who is facing trial in the case under c onsideration. Defence has, again, pointed out that though in her examination in chief, PW-1 claims that she could recognize the miscreant with covering on the h ead as Md.Namar Ali yet in her cross examination, she very frankly admitted that she could not identify the person who shot her husband dead because of the fact that he had covered his head with a gamsa.

#58. The evidence, so tendered by PW1, according to learned counsel for the a ppellants, is emphatic demonstration to the fact that her evidence, as far as id entify of accused Namar Ali is concerned, cannot at all be accepted without a la rge grain of salt. Once again, such argument is found to be much without any sub stance whatsoever. It is true that, the PW-1 in her cross examination admit ted that she could not fully recognize the man whose head was so covered with ga msa . 59. But one must not over look the fact that there is unchallenged evidence to show that the PW1 could also recognize the deceased by his voice. There is ov erwhelming evidence on record to show that the deceased and accused Namar Ali ar e not only closely related to one another but they were locked in a series of di sputes over a very long period of time. These devastatingly suggest that PW-1 or for that matter PW2 & PW3 could very well recognize accused Namar Ali not only by his voice but by their appearance as well . Being so, the claim of the PW1 th at she could recognize accused Namar Ali by his voice cannot easily be brushed a side. 60. On the point of identity of the accused Namar Ali, prosecution has produ ced more and more evidence and such evidence comes in the form of the testimony of PW-3. In her evidence, PW-3 has stated that hearing hue and cry from court-ya rd of deceased, she came out of her house taking a lantern in her hand. The mome nt, she arrived at the court-yard of deceased, a man dashed against her for whic h she fell down on the ground.

#61. But then, in the light of lantern, she could recognize such a man an d he was none other than accused Namar Ali. Defence could not show that evidence , so tendered by the PW3, cannot be relied on for any reason whatsoever. Such a revelation, therefore, becomes one more fluent testimony to the fact accused Md. Namar Ali was the 3rd miscreant who along with other two hoodlums participated i n the crime under scrutiny. 62. It is worth noting that the FIR was lodged without any delay. On perusal of the FIR Ext.1, we have found that the name of accused Namar Ali along with o ther two accused persons figured prominently in such a document of enormous impo rtance. The naming of the accused Namar Ali in the FIR, in the fact and circumst ances present case, speaks loud and clear that accused Namar Ali did present at the place of occurrence and that he did participate in the crime in question. 63. It has been contended on behalf of the defence that there was another pe rson whom all the village people addressed as ’Mama’. According to defence, the presence of another person who is also called as’Mama’ has raised a serious doub t as to whether accused Namar Ali and none else was there at the scene of occurr ence on the night in question. With such a doubt in mind, no Court would ever ve nture to entertain a view that accused NamarAli was guilty of offence, he was ch arged with. 64. The learned Trial Court--- instead of giving benefit of such a grave dou bt touching a point as serious as the identity of accused Md. Namar Ali ----rec orded a verdict of guilt, totally oblivious to the cardinal principle of law tha t benefit of doubt needs to be given-- not the prosecution--- but to the accused instead. This alone makes judgment, impugned, totally unsustainable in law. Suc h an argument too is, however, found to be equally away from the truth. 65. It is true that evidence on record shows that there is another man in th e concerned village whom the villagers called as ’Mama’. But then, it is for the defence to show as to how he could fit into the facts and circumstances of the incident in question. This is because of the reason that only for the symmetry b etween the nick names of accused Namar Ali and another villager, later does beco me a suspect in the crime under consideration. 66. Nor does it require this Court to entertain a view that accused Namar Al i was no way connected with such a crime. But defence has done nothing to show a s how the other Namar Ali got involved in the case under consideration. In the f ace of such revelation, we find no difficulty in rejecting the claim of the defe nce that other Namar Ali in their village may also be architect of the crime in question. 67. It has been also contended that the night in question was a dark one and it must be quite impossible for the witnesses to recognize the miscreants who r eportedly done havoc to the inmates of the house of deceased but despite above, the PWs, particularly PW1, PW-2 and PW-3 seemed to have rendered an account of t he incident under consideration in minute details. This is simply unbelievable _ __ argues learned counsel for the appellants. In this connection, we may note how the Learned Trial Court addresses th 68. e above allegation. Learned Trial Court answered the charge, so raised from the side of the defence as under: (cid:28)There are several decisions of the Hon’ble Supreme Court on identification of o ffenders even at the darkest of night. By placing reliance upon 2002 (SCC (Cri) 153. I hold that when the persons are known to each other, even at the darkest o f night a person can be identified by his voice, appearance etc. In the instance case, it is clear that the three trusted witnesses - Pws. 1,2 and 3 had the occ asion to know the accused persons earlier as they were near relations and were a cquainted with the accused persons. These witnesses have clearly narrated that t hey recognized the assailants by the light of the burning lantern as well as the lamp. This being the position, it can be safely held that all the three accused persons could be identified properly by these witnesses.

#69. We may, now, consider above argument in the light of materials available on record keeping in mind analysis rendered by the Trial Court on this count.

#70. On the perusal of the materials on record, we have found that there is u ndeniable and undisputable evidence to show that a lantern was burning in the ho use of deceased on the night in question. So also there is telltale evidence to show that the PW 3 who encountered the accused Namar Ali in the court-yard of de ceased could clearly recognize him in the light of the lantern which she was in her hand when she encountered aforesaid accused in the court yard of the decease d. In the face of above revelations, it can easily be held that there was enough light for the PWs to recognize the miscreants who tormented them in their own h ouse on the night in question. 71. Even if we assume for the sake of argument for a moment that there was n ot enough light and that covering on the head of the 3rd miscreant prevented the PWs from recognizing those miscreants, yet then, there is clinching evidence, a s held been held by the learned Trial Court, in the form of testimony of PW 1 to show that she could recognize the accused Namar Ali by his voice as well. Thus, we have no hesitation in holding that the witnesses could very well recognize t he miscreants who committed the crime under consideration on the night of 17.2.2 001. 72. The prosecution case has been challenged also on the count that there we re series of disputes between the deceased and accused Namar Ali which they foug ht with enormous venom. Such enmity must have propelled the witnesses particular ly PW-1, PW2 and PW-3 to come up before the court with false and fabricated alle gations. The facts that the testimony, tendered by those PWs shows liberal quant ity of inconsistencies/contradictions, only fortify its claim that prosecution h as founded its case on lies and surmise only -----argues learned counsel for the appellant.

#73. A bare perusal of the materials on record unmistakably demonstrates that the parties to the aforesaid case, particularly the deceased and the accused Na mar Ali, got locked over a series of disputes for a quite considerable period of time. It is also true that such disputes between the parties makes their relati onship extremely hostile. However, such admitted positions no way take the case of defence to its expected goal. 74. Materials on record, we find, no way suggest that only for such disputes , the PWs aforesaid come up with a false case in order to punish the accused per sons and in the process allowing the actual culprit to go scot free. Quite contr ary to the claim of the accused/ appellants, in our instant case, the admitted p revious enmity is a clear pointer to the fact that accused persons had the motiv e in committing crime under consideration. 75. Such motive, we find, was nothing but to settle the disputes which accus ed had with the deceased at any cost whatsoever. Thus, the previous enmity becom es one more testimony of prosecution case being truthful, more so when there is no credible evidence to show to any person(s) other than the accused persons her ein any axe to grind against the deceased. 76. On considering the materials on record further, we have also found that there are some inconsistencies/contradictions in the evidence, rendered by the P Ws. But such contradictions/inconsistencies no way serve to show that such defic iencies occurred only for PW’s projecting a false and concocted case. Quite cont rary to it, those deficiencies in testimonies of aforesaid PWs, in our consider ed opinion, occurred --not for PWs being untruthful but for their being illitera te persons and also for their being totally strangers to the system where comple xity and intricacy are inherent which the witnesses are not at all acquainted wi th. 77. Inspite of above being the situation, PWs particularly PW-1, PW -2 and P W -3 come up with stories which support each other on the main, off course, leav ing some space for them to be at war on peripheral matters. In above view of the matter, the allegation that the PWs projected before the Court a false and conc octed story for their having enmity with the accused persons slips into insignif icance without causing in damage to the prosecution case. These also speak well that those insignificant infirmities cannot be the ground to reject the prosecut ion case, as suggested by the defence. 78. Here, it is worth noting what the Hon’ble Supreme Court observes in a case of Sucha Singh & other vs State of Punjub reported in (2003) 7 SCC 643. - (cid:28)exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice canno t be made sterile on the plea that it is better to let a hundred guilty escapes than punish an innocent. Letting the guilty escape is not doing justice accordin g to law. (cid:29) ( para 20) 79. Defence has also contended that on the night in question, the deceased w as killed near his own house which is situated a distance of half of a kilometer from the place where his dead body was found in the early hours of 18th Februar y, 2001. It has been suggested that after being killed, his body of the deceased was brought to the place of occurrence to make it out a case of murder. Such a stance, taken by accused persons, is found well apparent from the cross examinat ion of the PW -1, PW 2 and PW -3. However, defence made absolutely no effort to probabilise such a claim. 80. A plea which was raised but which has not been probabilised may affect a dversely the defence case, more so, in a case when there is evidence to show th e involvement of accused person with the crime, which he is charged with. Simil ar is the position in our instant case. Being so, the aforesaid plea which remai ns totally unsubstantiated, in the facts and circumstances of the present case, only serves to show that accused raised such plea only to screen themselves from the punishment which they are likely to face for their misdeed.

#81. One more factor has tilted the balance in favor of prosecution herein. W e have found that there is undeniable evidence on record to show that just after the alleged incident, the accused Md.Namar Ali absconded and as such, he could not be arrested during the course of investigation for which he was shown abscon der in the charge sheet. The absconding of the accused just after the alleged in cident, in the facts and circumstances of the present case, becomes one more add itional circumstance showing the involvement of the aforesaid accused in the cri me under scrutiny. 82. Our forgoing discussions have now, made it abundantly clear that the pro secution has very successfully proved that on the night in question, the accused Namar Ali, Riaz Ali and Sifat Ali went to the house of deceased in disguise of police personnel, forced the inmates of the house of deceased to open the doors and on entering the house of the deceased, they looked for the deceased and ulti mately succeeded in locating him in his house. 83. We have also found that on seeing accused Namar Ali, the deceased uttere d the word ’mama’ for which accused Namar Ali shot him in between his abdomen an d chest killing him on the spot. Immediately thereafter, accused persons made a retreat from the place of occurrence. 84. These revelations are emphatic demon stration to the fact that on the night in question, accused Md.Namar Ali inten tionally caused the death Fakaruddin .More important, these are also testimony t o the fact that accused Namar did so in furtherance of common intention of all t he accused persons. 85. In view of above, in our consider opinion, prosecution has successfully proved the charge U/s 302 read with 34 of IPC against all the accused /appellant s and therefore, all accused persons are liable to be convicted of offence und er section 302 read with 34 of IPC and liable to be punished accordingly. As lea rned Trial Court appropriately punished the accused/ appellants, we have found n o infirmity whatsoever in judgment impugned. 86. 87. 88. In the result, the appeal is dismissed. Return the LCR. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in ap propriate cases. Therefore, for the sake of brevity and in the light of our disc ussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with re gard to the victim compensation as provided by Section 375(A) Cr.P.C., we make t he following directions:- 1. As an interim measure an amount of Rs.50,000/- shall be deposited by the Stat e Government with the District Legal Services Authority of Hylakandi District wi thin a period of two months from this date. The District Legal Services Authorit y, on receipt of the said money, shall make an enquiry to ascertain as to whethe r, there is dependent(s), who suffered loss as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation.

#2. Upon such enquiry, if it is found that the dependent(s), if any, need rehabil itation, then the District Legal Service Authority shall initially release the s aid interim amount and thereafter direct payment of adequate compensation, as ma y be prescribed by the scheme to the prepared by the State Government. 3. It is made clear that if the District Legal Services Authority, after due enq uiry, arrives at the findings that there is no dependent(s) or that the dependan t(s) of the deceased/victim does not required any rehabilitation, then the Distr ict Legal Services Authority, shall refund the said amount of Rs.50,000/- withou t delay, in favour of the State Government. 89. Let a copy of this judgment and order be furnished to Mr Z Kamar, learne d Public Prosecutor and the Chief Secretary to the Govt. of Assam, for doing the needful.