JUDGMENT AND ORDER
A.C Upadhyay, J.
The accused/appellants were put on trial for commission of offence u/s 302/34 IPC before the learned Sessions Judge, North Lakhimpur in Sessions Case No. 70(NL)/06. On conclusion of the trial, the accused/appellants were convicted u/s 302 r/w Section 34 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5000/-, in default, to undergo further rigorous imprisonment for 1 year.
2. The prosecution story, in brief is that on 5.8.2005 at about 6-00 PM while Md. Motin and Abdul Barek were returning home from Borsola market by riding on their respective by-cycles, the accused/appellants, together with other accused persons restrained both of them on the road at Rajgarh Chariali and injured them by means of sharp weapons. As a result of the injury caused, the victims i.e Abdul Barek died on the spot and Md. Motin succumbed to his injuries later in the hospital.
3. On receipt of the FIR in this regard, a case was registered by the officer-in-charge, North Lakhimpur and investigation was launched. The Investigating Officer (I/O) caused the inquest of the dead body of the deceased Md. Motin and Abdul Barek through the executive Magistrate and thereafter sent the dead body for post-mortem examination to North Lakhimpur Civil Hospital. During investigation, the I/O also seized one dao as produced by one Harej Ali and one dagger produced by Md. Mamud Ali and Bamboo lathi produced by Abdul Barek.
4. On completion of the investigation, the I/O submitted chargesheet against 5 accused persons alleging commission of offence u/s 147/341/302 IPC. The learned Sessions Judge, on receipt of the case for trial, framed formal charges u/s 147/341/302 IPC against the chargesheeted accused persons. On reading over and explaining the charge, the accused/appellant pleaded not guilty and claimed to be tried.
5. During trial, the prosecution side examined as many as 13 witnesses to establish the charge against the accused persons. All the prosecution witnesses were duly cross-examined by the defence counsel. On conclusion of the prosecution evidence, the learned Sessions Judge, recorded the statement of the accused u/s 313 CrPC.
6. 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, accused Mamud Ali and Abdul Barek were acquitted by the learned Sessions Judge, since the prosecution failed to prove the accusation against them beyond all reasonable doubt.
7. Learned counsel for the appellants vehemently submitted that though the accused/appellant have been convicted u/s 302 r/w Section 34 IPC, but no evidence is forthcoming regarding specific part/role played by the accused/appellants individually. 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 inflicted the cut injury on his person. Learned counsel submitted that if the death of the deceased was due to one cut injury on his persons then other accused persons, who have been convicted for causing death of Barek Ali, did not assault the 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/appellant in the darkness was improvable proposition. Learned counsel further submitted that independent witnesses did not support the prosecution story and only those witnesses, who are relatives of the victims deposed against the accused/appellants.
8. In reply to above, learned PP submitted that the prosecution side has been able to establish the charges against the accused/appellants beyond all reasonable doubt and therefore, conviction and sentence passed by the learned 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 examine the core of the prosecution evidence:
10. PW.1, Md. Abdul Kader, the first informant, was present in the market, 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 hospital on 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 injured Abdul Motin that the accused person have committed the offence. Little later he found Abdul Barek was lying dead at the place of occurrence. PW.1 rushed to the Naoboisha 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 occurrence. Pw.1 was informed by Babul Ali Asgar Ali about the occurrence.
11. PW.2, Md. Iman Ali, is not an eye witness of the occurrence. He came to the place of occurrence and found Abdul Barek lying dead in the place. PW.2 also found injured Abdul Motin, who was being taken to hospital for treatment. Though PW.2 met the deceased Abdul Motin but he did not ask anything about the incident. PW.2 stated in his deposition that the deceased was a veteran 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, Motin, 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 asked Abdul Motin to stop there and had beaten Abdul Motin by means of a lathi by saying “you wanted money from Immam Master take this”. In the meantime, accused Abbash injured Abdul Barek on leg. Sustaining lathi injury Abdul Motin ran from there, but he was caught by the other accused persons and he was beaten up there. By seeing this, PW.5 fled away from the place of occurrence.
During cross examination, PW.5 stated that it was the accused Subed Ali and not the accused Abdul Barek, who had asked Abdul Motin to stop in the place of occurrence. During cross examination PW.5 denied the suggestion given to him by the defence that he did not state before the Investigating Officer that he had seen the accused Abdul Barek beating the injured Abdul Motin by means of lathi.
However, PW.12, the Investigating Officer (Ramesh Sarma, S.I) stated that Abbas Ali, PW.5 had never stated before the investigating authority that he had seen Abdul Barek injuring the deceased Abdul Motin by means of a lathi.
14. 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 Islam and Abdul Malek were returning from Brosola market to their respective residences. Abdul Malek was going by sitting in the carrier of Abdul Barek and Md. Din 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. Meantime, accused, Md. Abbas Ali and Mr. Harej Ali came out from the shop of accused, 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 beaten Abdul Motin there. Seeing this, PW.6, Md. Abdul Islam and his brother, Md. Kasem, who was with him in his bicycle, left therefrom. PW.6 deposed that Abdul Barek died on the spot and Abdul Motin died in the North Lakhimpur hospital. PW.6 deposed that he could not recognized the other person, who was with accused, Md. Subed Ali, Hd. Harej Ali and Md. Abbas Ali.
During cross examination, PW.6 deposed that due to darkness, he could not recognize the other person, from his evidence it is transpired that he could recognize the accused, Md. Subed Ali, Md. Harej Ali and Md. Abbas Ali and none else.
15. PW.7, Din Islam, deposed that at the time of occurrence, he along with accused persons were returning home from the Borsola market to his residence. He was proceeding in the bicycle carrier of Abdul Motin. Abdul Malik and PW.7 did not have their own bicycles. Abdul Malik was riding on Abdul Barke's bicycle. When they reached at Rajgarh Tiniali, accued Abbash came out from Haresh Ali's shop and addressed Matin by saying “you wanted money from Imam Master, take money and go”, and then injured Abdul Motin by means of a sharp weapon on his leg. Sustaining cut injury Abdul Motin ran away from there. By seeing the incident, this PW.7 ran away from the place of occurrence, 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 mortem examination over the dead body of the deceased, Abdul Barek on 6.8.2005 at North Lakhimpur Civil Hospital, as produced by Naoboicha out-post in connection with Naoboicha out post GD Entry No. 97 dated 5.8.2005 During his post mortem examination, he had found the following injuries upon the person of the said deceased as follows:
Left leg of the deceased was found amputed at 8cm above left ankle joint. The wound of the amputed part was incised looking of sizes 6cm × 4cm. A clean beveled sharp cut was seen in the both bone of the leg. The muscles, major blood vessels 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 sustained. To him, the injury sustained by the deceased is sufficient in ordinary course of nature to cause the death of the deceased, though timely treatment could have saved the injured.
17. PW.9, Abdul Malek, deposed that at the time of occurrence he along with Babul, Din Islam, Abbash, Barek and Motin was coming home from Borsola market on their respective bicycles. PW.9 corroborating the testimonies of other 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. According to PW.9, accused Haresh Ali dealt a lathi blow on Motin. Sustaining lathi blows Abdul Motin ran from there. In the meanwhile, accused Abbas Ali injured the Abdul Barek on leg with a dao. Due the assault, Abdul Barek fell down there. PW.9 tried to tie a gamosa upon the injury of Abdul Barek. Then, he saw that Motin was charged felled assaulted and dragged by the accused persons. On seeing this, PW.9 also fled away from the place of occurrence.
18. PW.10, Dr. Rup Kumar Phukan, who performed the post-mortem examination of the deceased Abdul Motin in the civil hospital, found the following injuries:
“1. Sharp cut in the lower limbs, left leg at about 1″ above the ankle joint causing complete detachment of left foot from left leg. Both leg bones, skin, soft tissues and vessels were cut through causing extensive haemorrhages, skin margins. All wounds were sharp and retracted. Muscles, ligaments vessels were also retracted.
2. Sharp cut right leg, about 2″ 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 caused bleeding.
3. Another sharp cut in middle thread of right leg about 2″ in size placed in anterior medid part, outer skin, caused cut and fracture of right tibia, causing sufficient 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 3½″ in size causing about 2/3rd separation of ankle of the right foot. The skin, lower end of fibule ligaments and muscles and vessels and upper part of calcenous bone was cut through, causing anterior haemorrhage.”
The Medical Officer opined that cause of death of the deceased was due to shock and haemorrhage as a result of the injuries sustained by him. According to the Medical Officer, all the injuries were sufficient together to cause the death of the deceased in its ordinary course.
19. Thus, the medical evidence given by the PW.8 and Pw.10 had confirmed that the death of the deceased, Abdul Motin and Abdul Barek was due to injuries 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 inquest over the dead body of the deceased, Abdul Motin through the learned Executive 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 accused persons surrendered in the police station with weapons of assault. However, PW.12 clarified that 3 accused persons, who had surrendered with the incriminating weapons at Naoboisa police station.
22. Thus, P.W.5, Md. Abbas Ali deposed that all the accused were involved 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 involved 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 accused, Md Abbas Ali who had injured Abdul Motin on his legs by inflicting dao injuries.
23. PW.7 Md. Din Islam deposed that he had seen accused, Abbas Ali injuring 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 also fled away from that place in fear. So, he had not seen who in fact injured Abdul Barek and who had beaten injured, Abdul Motin.
24. On the other hand, PW.9, Md. Abdul Malek had implicated all the five accused of this case for committing the alleged offence. To him, it was accused, Md. Harej Ali, who had injured Abdul Motin by means of lathi and it was accused, 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.
25. Thus, on scrutiny of the evidence of P.W.5, P.W.6, P.W.7 and P.W.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 witnesses, 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 along with him accused Md. Abbas Ali, Md. Abdul Barek and Md. Harej Ali were there and after taking tea, accused Md. Abbas Ali, Md. Abdul Barek and Md. Harej Ali went away therefrom. After almost 10 minutes of the departure of these three accused, he heard about the occurrence.
But, during cross-examination, D.W.1 deposed that he had no knowledge, whether accused Abdul Barek, Md. Harej Ali and Md. Abbas Ali came to the Tea Stall on bicycles. DW.1 also deposed that he did not know where had these 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. Harej 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 the place of occurrence after hearing about the occurrence.
Thus, DW.1 could not show that at the time of occurrence, accused, Md. Abbas 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 occurrence and then he went to the concerned Naoboicha Outpost to inform about the occurrence. 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 disclosed to P.W.3 whom they met on the way to the Nowboicha OP that they heard about the 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 that he had actually seen accused Abdul Barek in beating Abdul Motin by means of lathi.
28. From the evidence of the eye witnesses, it is transpired that when 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. Subed Ali asked Abdul Motin to stop there and thereafter all the three accused, namely, Md. Subed Ali, Md. Harej Ali and Md. Abbas Ali has injured Abdul Motin and Abdul Barek. As a result of the brutal attack Abdul Barek died on the spot, and Abdul Motin succumbed to his injuries.
29. From the evidence of the eye witnesses, it transpires that there 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 common intention they had injured Abdul Motin and Abdul Barek by means of sharp weapons, for which both the injured succumbed to their injuries. Moreover, from the evidence of the eyewitnesses, all the accused/appellants before us were found 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 above named.
30. In this regard we may refer the decision of the Apex Court in State 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 depositions 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 the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution 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 witness and record a finding as to whether his deposition inspires confidence.
“9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence 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 dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [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 Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra. (2010) 13 SCC 657]
31. There are some minor contradictions in the statements of witnesses in regard to the fact as to the weapon of assault and in the sequence of events. 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 them died. The fact of assault had been affirmed by all the eye witnesses. In view of the above, minor contradictions in the statements of witnesses becomes immaterial. It is evident from the materials available on record that the incident took place in presence of the eye witnesses' and there is no reason to disbelieve their honest and natural testimony.
32. So, summing up the above discussions and considering the same with utmost care and caution, we are of the opinion that the prosecution could prove the accusations u/s 302/34 IPC against the accused/appellants above named beyond all reasonable doubt.
33. In the result, the appeal stands dismissed.
34. Send back the LCR.
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