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GAHC010136542017

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./300/2017

RAIZUDDIN AHMED @ MD RIAZUDDIN SHEIKH and 9 ORS

S/O JAMAL MIAH

2: MD. SAIZUDDIN AHMED @ MD. SAIZUDDIN SHEIKH

S/O JAMAL MIAH

3: SHER ALI @ MD. SHER ALI

S/O JAMAL MIAH

4: ABDUL HAI @ DILLAR

S/O LATE SUBHAN ALI

5: TAHER ALI @ MD. TAHER ALI @ GUDU

S/O SUBHAN ALI

6: SADEK ALI @ MD. SADEK ALI

S/O LATE ALIMUDDIN

7: SAYED ALI @ MD. SYED ALI

S/O LATE ALIMUDDIN

8: MD. USUB ALI @ MD. YOUSUF ALI

S/O MD. ABDUL MALEK

9: ABDUS SALAM @ MD. ABDUL SALAM AHMED

S/O LATE SAMAD MUNCHI @ ABDUS SAMAD

APPELLANT NO. 1 TO 9 ARE OF VILL. GOBINDAPUR CHALA

P.O. GOBINDAPUR

P.S. GOALPARA

DIST. GOALPARA

ASSAM.

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10: MERAJUL ISLAM @ MD. MERAZUL ISLAM

S/O LATE MOTIOR RAHMAN

VILL. KARBALA

P.O. GOBINDAPUR

P.S. GOALPARA

DIST. GOALPARA

ASSAM

VERSUS

THE STATE OF ASSAM and ANR

2:MD. NAZMUL HOQUE

S/O LATE ABDUR RASHID

VILL. and P.O. GOBINDAPUR

P.S. GOALPARA

DIST. GOALPARA

ASSAM

PIN 78310

Advocate for the Petitioner : MR.A AHMED

Advocate for the Respondent : MR. M PHUKAN, ADDL. PP, ASSAM

Linked Case : Crl.A./318/2017

AMIR ALI and ANR

S/O ABDUL HUSSAIN

R/O GOVINDAPUR

KARBALA

P.S. and DIST. GOALPARA

ASSAM.

2: SATTAR ALI

S/O MONSER ALI

R/O GOVINDAPUR

KARRBALA

P.S. and DIST. GOALPARA

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ASSAM.

VERSUS

THE STATE OF ASSAM and ANR

assam

2:MD. NAZMUL HOQUE

S/O LATE ABDUR RASHID

R/O VILL. GOBINDAPUR

P.O. and P.S. GOALPARA

IN THE DIST. OF GOALPARA

ASSAM.

------------

Advocate for : MRS.R B DEB

Advocate for : MR D TALUKDAR appearing for THE STATE OF ASSAM and ANR

BEFORE

HON’BLE MR. JUSTICE SUMAN SHYAM

HON’BLE MR. JUSTICE MIR ALFAZ ALI

Date of hearing : 25.02.2021.

Date of judgment : 15 .03.2021.

JUDGMENT AND ORDER (CAV)

(Suman Shyam, J)

Heard Mr. H.R.A.Choudhury, learned senior counsel assisted by Mr. A. Ahmed,

learned counsel appearing for the appellants in Crl. Appeal No.300/2017. We have

also heard Mr. B. M. Choudhury, learned counsel appearing for the appellants in Crl.

Appeal No.318/2017. Mr. M. Phukan, learned Additional Public Prosecutor, Assam, is

present on behalf of the State in both the appeals. None has appeared for the

informant.

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2. The aforementioned appeals arise out of the judgment and order dated

16.06.2017 passed by the Court of learned Sessions Judge, Goalpara in connection

with Sessions Case No.223/2012. There were 16 charge-sheeted accused persons out

of which, one accused viz., Md. Abdus Sattar Ahmed died. The remaining 15

accused persons had faced trial. By the judgment and order dated 16.06.2017

passed by the learned Sessions Judge, Goalpara, the 10 appellants in Criminal

Appeal No.300/2017 and the 2 appellants in Criminal Appeal No.318/2017 had been

convicted under Sections 147/341/323/307/302 read with Section 149 of the Indian

Penal Code. Accordingly, the learned Sessions Judge, Goalpara had sentenced the

accused persons, viz., Yousuf , Raijuddin @ Raju, Saizuddin, Sher Ali, Amir Ali, Sattar Ali,

Abdus Salam, Abdul Hai @ Dillar, Taher Ali @ Guddu, Mirazul, Sadek Ali & Sayed to

suffer simple imprisonment for six months for the offence under Section 147 of IPC; to

suffer simple imprisonment for one month for the offence under Section 341 of IPC; to

suffer simple imprisonment for six months for the offence under Section 323 of IPC; to

suffer rigorous imprisonment for life and to pay a fine of Rs.5000/- each and in default,

to suffer simple imprisonment for a year for the offence under Section 302 of IPC and

also to suffer rigorous imprisonment for three years and to pay a fine of Rs.3000/- each

and in default, to suffer simple imprisonment for six months for the offence under

Section 307 of IPC. All the sentences were to run concurrently. The accused persons

were acquitted in respect of the charge under Section 326 of IPC.

3. The other three accused persons viz., Ramjan Ali, Lalchand Ali and Gole

Rahman were, however, honourably acquitted from all the charges on the ground

that the prosecution had failed to implicate them with the offences alleged.

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4. The prosecution story, briefly stated, is to the effect that on 08.07.2008 at

around 8.30 p.m. while the deceased Abdul Wahab was returning home from

Karbala Bazar, riding a motorcycle, accompanied by five other persons, the accused

persons had laid an ambush in a secluded place in the Gobindapur Rabhapara PWD

road by tying three thick wires to a mango tree with an intention to kill the deceased.

As soon as the deceased Abdul Wahab and his companions reached the place of

occurrence in four motor bikes, the accused persons had pulled the wires causing

the first bike to fall down and thereafter, launched a sudden attack on Abdul Wahab

by means of deadly weapons such as sword, dao, axe, spear etc. Before attacking

him with sharp weapons, one of the accused persons had also sprayed chilli power in

the eyes of the victim. Due to the multiple injuries sustained on his person, Abdul

Wahab died on the spot and Omar Ali, his son-in-law, also sustained grievous injuries.

5. On 10.07.2008 Md. Najmul Haque had lodged an ejahar before the Officer-in-

Charge, Goalpara Police Station reporting the incident with a request to arrest the 13

accused persons including the appellants named therein. Based on the ejahar dated

10.07.2008, Goalpara P.S. Case No.210/08 was registered under Sections

147/341/325/326/307/302 of the IPC. The responsibility for carrying out the

investigation in the aforesaid Police case was entrusted upon Inspector Saleh Uddin

Ahmed. During the course of investigation, the I.O. had recorded the statements of

several witnesses, seized some incriminating materials including the four bikes, dao,

spear, lathi as well as the wearing apparels of the victim from the place of

occurrence, collected the post-mortem report and thereafter, submitted charge-

sheet.

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6. Based on the charge-sheet submitted by the I.O. charge was framed against

the 16 accused persons under Sections 147/341/326/307/ 323/302 read with Section

149 of the IPC and the same was read over and explained to them. Since the

accused persons had pleaded not guilty and claimed to be tried, the matter went

up for trial.

7. In order to bring home the charges, the prosecution side had examined as

many as 18 witnesses, which includes five eye-witnesses. The defence case is one of

total denial and they had examined two witnesses.

8. PW-1, Nazmul Haque, is the informant in this case and he has deposed that on

10.07.2008, he had lodged an ejahar (Ext-1) and Ext-1(1) is his signature. This witness

has stated that deceased Abdul Wahab was his nephew and injured Omar Ali his

grandson-in-law. He knew the accused persons by their names and faces and that

the incident took place 7 ½ years ago at around 8.30 p.m. PW-1 has, however,

stated that he was not present in the place of occurrence but when he heard

commotion, he came out of his house and went to the place where he saw Wahab

lying on the road in an injured state. He found that Wahab was dead. Police arrived

about one hour after the incident, inspected the place of occurrence and took the

dead body away for post-mortem examination. PW-1 has also deposed that he

found Omar Ali (PW-14) lying in an injured state about 4/5 cubits away from the place

where the dead body of Wahab was lying and he saw injuries on the legs and waist

of Omar. The villagers took Omar to the hospital. Later on, one Ashad Ali present

there had told him that the accused Raijuddin, Saijuddin, Sher Ali, Abdul Hai, Taher

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Ali, Yusub Ali, Sattar Ali, Amir Ali, Abdul Salam, Samal Ali and Sadek Ali had caused

injuries to Wahab and Omar by assaulting them on the road. After learning about the

said incident he had lodged the ejahar on the next day. This witness has also stated

that the ejahar got delayed as he was busy in Wahab’s burial. During his cross-

examination, the testimony of this witness could not be shaken by the defence side.

9. Since the prosecution story is primarily based on the testimony of five eye-

witnesses viz., PWs-2, 7, 13, 14 and 15 and the conviction of the appellants is also on

the basis of their evidence, let us first analyse the evidence adduced by the eye-

witnesses.

10. PW-2, Nurnobi Islam, is an eye-witness in this case and he has deposed that on

the date of the incident, at about 8.30 p.m., he was coming from Karbala Bazar on a

motorcycle accompanied by five other persons. He was riding a motorcycle alone.

Lutfur and Rafiqul were on one of the motorcycles whereas, Abbas and Abdul

Wahab were in another motorcycle. Omar Ali was riding another motorcycle solo.

PW-2 has stated that the motorcycle which Lutfur was riding with Rafiqul as his pillion

rider, was ahead of all and as soon as they reached the Kali Crematorium near

Rabhabasti on the PWD road, the motorcycle driven by Lutfur fell down after colliding

with some wire. According to the PW-2, Abdul Wahab was riding the next motorcycle

and he immediately stopped his bike by applying the brakes. The other motorcycles

also stopped. At that time, the head lamp and the engines of the motorcycles were

on. PW-2 has stated that the accused Yousuf Ali, Raijuddin, Sher Ali, Saijuddin, Mirajul,

Sadek, Syed, Abdul Hai @ Dilla, Toher Ali @ Budu, Sattar, Abdul Sattar, Amir and Abdul

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Salam came out from under the mango tree located beside the road and thereafter,

Yousuf threw some water like substance on the face of Wahab. When Wahab

covered his face, Raijuddin came and dealt a dao blow on Wahab’s left hand and

the hand got severed and fell on the ground. After that Raijuddin, Saijuddin and

other accused persons started assaulting Abdul Wahab. PW-2 has further deposed

that he had witnessed the entire incident in the flash of the headlamp of the

motorcycle. Then the persons present there had raised commotion. At that time,

Omar Ali (PW-14) moved ahead to resist the accused persons but the accused had

assaulted him too and Omar (PW-14) sustained injuries. When the villagers came out,

the accused persons fled the scene through the jungle. Thereafter, Wahab died on

the spot. Later on, police came.

11. PW-7 i.e. Rafiqul Islam, who is another eye-witness to the incident, also stated

that the incident occurred at around 8.00/8.30 p.m. when he was riding pillion on a

motorbike with Lutfur Rahman. This witness has deposed that he was going from

Karbala to Wahab’s house at Gobindapur and the deceased was also riding another

bike just behind theirs. Abbas Ali was on his pillion. Following him was Omar Ali’s bike

which he was riding alone. Behind him was Nurnobi’s bike which was also without any

pillion rider. As soon as they arrived at Rabha basti, then they found a rope like object

on the road spreading from one side to another and his bike, which was ahead of the

other three, fell down after colliding with the rope. Immediately, Abdul Wahab and

others also stopped their bikes on the road but kept their headlamps on. At that time,

accused Yousuf Ali arrived there and poured some water like substance on the face

of Wahab. While Wahab was cleaning his face with his hand, Raijuddin came and

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dealt dagger blow on the left wrist of Wahab and the hand got severed. Thereafter,

stab blows were inflicted on several parts of the body of Wahab. This witness has

deposed that accused Sher Ali gave a blow on the nape of Wahab and he could

recognise accused Saijuddin, Raijuddin, Sher Ali and Younus. There were 7/8 other

persons with them which he could not recognise. PW-7 has, however, categorically

mentioned that all the accused persons had attacked Wahab and all of them were

armed with daggers. This witness has also stated that when Omar Ali (PW-14) had

moved ahead to stop them, 2/3 accused persons assaulted Omar Ali with daggers as

a result of which, he had sustained injuries in the legs, right hand and waist. This

witness has also stated that Rahela Khatun came out of the house of his brother-in-

law. They also raised hue and cry. However, accused Yousuf, Sher Ali and Raijuddin

were there till arrival of Rahela but others ran away from that place. When Rahela

raised hue and cry accused Sher Ali stabbed her in the left side of abdomen with a

dagger causing her to bleed and thereafter, ran away from the scene. After a while,

police arrived there and at that time he was there at the place of occurrence.

12. PW-13, Abbas Ali, is also an eye-witness to the occurrence and he has similarly

deposed that the incident took place on 08.07.2008 at around 7.30 p.m. At that time

he, accompanied by deceased Abdul Wahab, Rafiqul, Nurnobi, Omar Ali and Lutfur

Rahman were coming towards their home at Gobindapur from Karbala Bazar by

riding motorcycles. PW-13 has stated that he was on the pillion in the second

motorbike driven by Abdul Wahab (deceased) and Lutfur Rahman and Rafiqul were

on the first bike. Omar Ali and Nurnobi were riding the next two bikes alone. The motor

bikes were moving in tandem maintaining a gap of about 3/4 cubits. Suddenly the

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bike driven by Lutfur Fell down near the Kali Mandir at Rabhapara, Gobindapur.

Abdul Wahab immediately stopped his bike and then the rest of the bikes also

stopped. Although the first motorcycle had fallen down, yet, its engine was still

running and the headlamp was on. He then saw accused Yusuf, Raijuddin, Saijuddin,

Sher Ali, Merajul, Amir, Abdul Sattar, Sadek, Sayed, Dilla, Abdul Hai, Guddu, Taher Ali

and Abdul Sattar coming out from underneath the shrubs located to the east of the

road and accused Yusuf threw some water like substance from a glass to the face of

Abdul Wahab. As Wahab was trying to wipe his face, Raijuddin came there and

dealt a dao blow in the left wrist of Abdul Wahab as a result of which, his hands got

severed and fell down on the ground. Accused Saijuddin then caused injury near the

forehead of Wahab with a “beki” dao as a result of which, the victim had received

cut injuries. Accused Sher Ali had hacked Wahab on his neck with a dagger. When

they started raising hue and cry the accused Abdul Sattar and Amir caught hold of

him. Rest of the accused persons started striking Wahab by means of “beki” daos and

daggers. When Omar Ali went forward to save his father-in-law, the accused Sadek,

Sayed, Dilla and Guddu hacked him on his hands and legs with daggers. Omar

sustained cut injuries in his right leg, right arm and waist. Hearing the sound of uproar,

Rahela Khatun came to the place and on her arrival, save and except the three

accused persons viz., Raijuddin, Sher Ali and Yusuf, the rest of the accused persons

left the scene. When Rahela asked Sher Ali as why he has assaulted his brother, the

later also stabbed Rahela on the left side of her abdomen with a dagger as a result

of which Rahela received perforated injury in her abdomen. He then fled the scene

after assaulting Rahela. PW-13 has also deposed that the severed hand of Abdul

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Wahab was lying on the road. Police from Goalpara Police Station had arrived while

he was in the place of occurrence and the police questioned him. Thereafter, a

report on the dead body was prepared and the body was taken away. Later Nazmul

lodged ejahar. PW-13 has stated that Ext-8 is his statement made before the

Magistrate.

13. Another eye-witness in this case is PW-14, Omar Ali, who had received injuries

in the incident. PW-14 is also the son-in-law of deceased Abdul Wahab. He has

deposed that on the date of the incident, at around 8/8.30 p.m., he was going home

riding a bike. After reaching Karbala Bazar he came across his father-in-law. At that

time, Lutfur Rahman, Rafiqul Islam, Nurnobi and Abbas Ali were shopping. Seeing him,

Abdul Wahab had called him and asked him to accompany them. After sometime,

they started off. PW-14 has also deposed that Lutfur and Rafiqul were on the first bike

while his father-in-law Abdul Wahab and Abbas Ali were in the second. He was alone

in the 3

rd

bike and behind him was Nurnobi, who was riding alone. This witness has

also categorically deposed that no sooner had they reached the Kali Mandir area

near Gobindapur Rabhabasti, the bike driven by Lutfur Rahman fell down. Then

everyone stopped when they saw accused Raijuddin, Yusuf Ali, Sher Ali, Abdul Salam,

Mirajul, Sadek, Saijuddin, Sayed,m Dilla, Guddu, Amir Ali and Abdul Sattar came out

from beneath the bamboo grove armed with large size “beki” daos. Accused Yusuf

threw water like substance from a glass to the face of Abdul Wahab. When Wahab

started wiping his face with his left hand accused Raijuddin dealt a blow on his left

wrist with a “beki” dao as a result of which, his hand got severed and fell down on the

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ground. Accused Sher Ali had hacked him on his back with a dagger. This witness has

also stated that accused Saijuddin had hacked Wahab on his forehead with a “beki”

dao. After that, the other accused persons also started hacking him repeatedly.

Hearing the uproar when he proceeded forward, accused Abdul Sattar hacked him

on his leg with a dagger. Sadek also dealt blows on his hands and legs and accused

Dilla hacked him on his right wrist with a dao as a result of which, he had received cut

injuries. Sadek again hacked him on his waist and right arm with a dao. According to

this witness, Sadek, Sayed, Dilla and Guddu had assaulted him and he fell down on

the ground and became unconscious. When he regained his senses in the Solace

Hospital around 1.00 O’clock in the following day, he was referred to Gauhati

Medical College Hospital (GMCH) at Guwahati. Later on, he could learn in the

hospital that his father-in-law Abdul Wahab had passed away. PW-14 has also stated

that his legs were plastered and after returning home the following day he went to

Guwahati and visited Dr. U. C. Sarma at Arya Hospital when the doctor had put a

new plaster by taking off the old one. PW-14 has also stated that he underwent

treatment for one month in Al-Salam Hospital as an indoor patient and later on, the

police interrogated him about 1 ½ months after the incident. His statement was also

recorded before the Magistrate and Ext-9 is the aforesaid statement.

14. PW-15, Lutfur Rahman, is another eye-witness to the incident, who has given a

similar version. PW-15 had also stated that he had seen in the flash light of the bikes

that accused Raijuddin, Sher Ali, Saijuddin, Yusus Ali, Sadek Ali, Mirajul Haque, Abdul

Salam, Abdul Sattar, Sayek Ali and Taher Ali coming out from the left side of the road

and going towards Wahab. Yusuf Ali threw some water like substance from a glass to

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the face of Abdul Wahab and when he started wiping his face, accused Raijuddin

hacked on the wrist of Wahab severing his hand which fell on the ground. Accused

Saijuddin then hacked Wahab on his forehead but the blow landed on the back side

of the head. The rest of the accused persons assaulted Wahab repeatedly by means

of daos and lathies etc. When Omar Ali came forward to save his father –in-law,

accused Sayed, Sadek and Taher Ali assaulted him with daos and daggers as a result

of which, Omar Ali fell down. When they raised hue and cry, the accused persons

fled the scene. After that, Rahela Khatun arrived at the place of occurrence and he

found accused Raijuddin, Sher Ali and Yusuf Ali there. When asked as to why they

had assaulted her brother, accused Sher Ali stabbed Rahela with a dagger as a result

of which she sustained injuries in her hands and near her chest and she fell down. This

witness has stated that going close to Wahab he found that Wahab was dead. A lot

of villagers had gathered therein. Police arrived at the place of occurrence after

about half an hour and examined the dead body. Injured Omar was taken to the

hospital but PW-15 has stated that he was not aware as to whether Rahela was taken

to hospital or not. Later on, Nazmul (PW-1) had lodged the ejahar.

15. PW-18, Saleh Uddin Ahmed, who is the Investigating Officer in this case, has

deposed that on 08.07.2008 he was on duty in Goalpara Police Station. At around

9.15 p.m. the Officer-in-Charge of the Police Station got the information that some

unknown miscreants had stabbed Abdul Wahab of Gobindapur and left his dead

body on the PWD road. Upon receipt of such information, the Officer-in-Charge

made G.D. Entry No.338 dated 08.07.2008 and thereafter instructed him to proceed

to the place of occurrence. The G.D. Entry was exhibited by the I.O. as Ext-13. PW-18

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has stated that he, accompanied by the staff, then went to the place of occurrence

which is the PWD road at Gobindapur and found a blood smeared male dead body

lying supine with injuries on various parts. PW-18 has also deposed that he found one

“beki” dao, lathi, spike and four motor bikes lying there. As soon as the police had

reached the place of occurrence, one Nazmul Haque (PW-1), who was present

there, identified the dead body to be of Abdul Wahab’s. He then held inquest on the

dead body upon its identification by Mallika Bewa i.e. the elder sister of the

deceased. At that time, portion of Abdul Wahab’s hand from the wrist to the finger

tips was found there and accordingly, a separate inquest was held on it. PW-18 has

also deposed that he had sent the dead body for post-mortem examination and

seized other articles lying scattered in the place of occurrence through Ext-6 as well

as Material Ext-1. PW-18 has categorically deposed that he had seized the four

motorcycles which were lying at the place of occurrence vide seizure-list Ext-14 and

later on handed over custody of the motorcycles to Nausad Ali (PW-4). On receipt of

ejahar (Ext-1) from Nazmul Haque a Police case was registered and the charge of

investigation in that case was handed over to him.

16. PW-18 has also deposed that he had examined the witnesses, the majority of

whom were examined on the basis of the G.D. Entry. The statement of rest of the

witnesses were recorded later. During his cross-examination, PW-18 has reiterated that

on arriving at the the place of occurrence he found the dead body of Abdul Wahab

and four nos. of bikes. The wrist of Abdul Wahab was found near his dead body. It

was a dark night. So petromax light was arranged at the place of occurrence. The

I.O. has also stated that he found the motor bikes in scattered engine off position but

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did not find the owners of the seized bikes at the place of occurrence. He did not

seize any document pertaining to the motorcycles nor did he collect registration

certificates of the motorcycles. He has also denied of having collected blood stains

or blood sample from the place of occurrence and from the wearing apparels of the

deceased. During his cross-examination, the I.O. has admitted that he did not put

page numbers or page index in the Case Diary. According to PW-18, the injured

persons themselves got their medical treatments done. PW-18 also stated that he had

examined witness Omar Ali on 22.07.2008 at Solace Hospital at Goalpara. Witness

Abbas Ali, Nurnobi, Motiur Rahman, Lutfur Rahman, Rahela Khatun and Rafiqul Islam

were examined under Section 164 Cr.P.C. on 19.07.2008.

17. PW-4, Naushad Ali, is a villager who had arrived at the place of occurrence

when he heard commotion and saw that the dead body of Abdul Wahab was lying

beside the road near Kali Cremation ground with the left hand of the wrist severed.

He has deposed that the police later on arrived at the place of occurrence, held

inquest on the dead body wherein he had put his signature. Similar is the version of

PW-5, Hajrat Ali, who also went to the place of occurrence after hearing the

commotion.

18. PW-6, Rahela Khatun, is the elder sister of deceased Abdul Wahab and she

has deposed that on the day of occurrence upon hearing commotion on the road

towards the north of her house where there was a Kali temple, she went there running

and found that 3/4 bikes were there with their headlamps on. Reaching there, she

found her brother Abdul Wahab lying on the road with his left hand cut upto the wrist.

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Omar Ali was lying beside the road. She then raised hue and cry. People from the

village gathered there. She found Nurul Nobi, Lutfur Rahman and Abbas there. They

raised commotion. Accused Raijuddin, Sher Ali and Yusuf were armed with daggers

and Sher Ali attacked her with dagger as a result of which, she sustained cut injuries

on her left hand and left side of the chest. Blood came out of the injuries and she

became senseless. She was later admitted to the Civil Hospital on that night. She

heard from Abbas Ali, Nurnobi and Lutfur that accused Saijuddin, Raijuddin, Yusuf,

Sadek, Sattar, Abdul Sattar, Amir Ali, Sayed Ali, Mirajul, Taher Ali, Abdul Hai and Abdul

Salam had killed Wahab by hacking him with daggers and that they also caused

injury to Omar Ali.

19. PW-8, Ajgar Ali, is a co-villager, who had arrived at the place of occurrence

after hearing hue and cry and saw the dead body of Wahab lying on the road with

his left hand severed. PW-9, Abdul Mannaf, is another co-villager who had also

deposed in similar line but was later declared as a hostile witness since he had

denied any knowledge about the seizure of the dao from the place of occurrence

and also the fact that his statement was recorded by the police.

20. PW-10, Sofiur Rahman, is a seizure witness and he has deposed to the effect

that he is a signatory to seizure list Ext-7 by means of which, the police had seized a

red half shirt, vest and a pair of long pants worn by the deceased.

21. The evidence of PW-11 does not appear to be of much significance since he

had also arrived at the place of occurrence only after hearing hue and cry and later

on found Wahab’s dead body lying there.

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22. PW-12, Dilip Basfor, is the person who had assisted Dr. A. K. Bora in conducting

the post-mortem examination on the dead body of Abdul Wahab at the Goalpara

Civil Hospital.

23. PW-16, Dr. Amit Krishna Bora, had conducted the post-mortem examination on

the dead body of deceased Abdul Wahab and submitted post-mortem report Ext-11.

As per the post-mortem report, the following injuries were found in the dead body :-

“EXTERNAL APPEARANCE

Stout body. Rigor mortis present all four limbs.

Wound : Multiple and cut injuries seen over the whole body. Anterior

portion.

1) Over the head and face : i) Right frontal 3”x1”x ½ “.

ii) Right cheek : 2” x 1” x ½ “.

iii) Below the mandible : 3” x 1” x 1”.

2) Right side of neck : 4” x 2” x 3”.

3) Left chest, below the nipple : 4” x 3” x 1”.

4) Right lower limb : i) compound fracture both bones.

ii) cut injury over the chest 3” x 2” x 1”.

CRAMIUM AND SPINAL CANAL .

Scalp, skull, vertebrae : Frontal part of forehead – injury seen with fracture

in maxilla, mandible and frontal bone.

Membrane : Ruptured.

Brain and spinal cord : Haematoma seen at frontal lobe of cerebrum :

4” x 3” x 2” sixe extending to subdural space.

THORAX

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Walls, ribs and cartilages : Cut injury over left chest and fracture of 4

th

and 5

th

ribs.

Lungs : Haematoma in the left side of lung.

Others : Healthy.

ABDOMEN

Healthy.

MUSCLES, BONES AND JOINTS

1) Injury seen over the maxilla, mandible and frontal bone. Simple

fracture.

2) Comminuted fracture over the right limb, both bones.

3) Amputed left hand at the wrist joint.”

According to the doctor, death was due to shock and haemorrhage caused

by multiple injuries sustained by the victim which were homicidal and ante mortem in

nature.

24. In their statements recorded under Section 313 Cr.P.C. the accused persons

have denied all the circumstances put to them. The defence side had examined two

witnesses viz., Md. Intaz Ali (PW-1) and Meherul Islam (DW-2).

25. DW-1, Intaz Ali, has deposed that on the day of the incident, one Meheru,

accused Raijuddin and Gule Rahman were present in his house in connection with

the Karbala Weekly Market meeting. As there was insufficient participants, the

meeting could not be held. In the meantime, time for namaj had started and

therefore, he had proceeded to the mosque for performing namaj. After returning

from namaj he heard about the death of Abdul Wahab at around 7.30 p.m.

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26. Likewise, DW-2, Meherul Islam, had also stated that the meeting was not held

on that day in the house of Intaz Ali since it was a rainy evening and there was

insufficient participation. As the DW-1 went to attend namaj, he along with Gole

Rahman and Raijudddin came from the house of Intaz Ali. While he was taking tea at

the Karbala Market, he was informed about the murder of Abdul Wahab. During his

cross-examination, DW-2 has admitted that accused Raijuddin, Saijuddin and Sher Ali

are his nephews and accused Mirajul Islam is his brother.

27. By referring to the materials available on record, Mr. H. R. A. Choudhury,

learned senior counsel appearing for the appellants in Criminal Appeal No.300/2017,

submits that this is a case where the ejahar was lodged two days after the incident,

that too, after consulting other persons. Therefore, it is apparent on the face of the

record that the ejahar is nothing but an afterthought whereby the appellants have

been designedly implicated. By pointing out the similarity in the testimony of all the

eye-witnesses, Mr. Choudhury submits, their version follows a parrot like similarity,

raising a serious doubt as to the veracity of the testimony of these witnesses. The

learned senior counsel further submits that from the lapses in the investigation by the

I.O., a serious doubt arises as to whether any of the eye-witnesses were at all present

in the place of occurrence. Therefore, submits Mr. Choudhury, there is actually no

eye-witness in this case.

28. By referring to the seizure-memo Ext-14 Mr. Choudhury submits that the ejahar

was lodged on 10.07.2008 based on which Goalpara P.S. Case No.210/08 was

registered. However, in Ext-14, by means of which the bikes were seized by the police

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two days ago i.e. on 08.07.2008, the police case number has been indicated which

goes to show that there has been manipulation of the Case Diary. By referring to the

testimony of the I.O. (PW-18) wherein he has admitted that no pagination has been

maintained in the Case Diary, Mr. Choudhury submits that the possibility of

manipulation of the Case Diary, by inserting statements of the witnesses recorded

subsequently, after consultation with others, cannot be ruled out in this case. He

therefore, submits that the sanctity of the process of investigation has been

compromised in this case due to failure on the part of the IO. to maintain a

transparent procedure of investigation. The learned senior counsel for the appellants

has also argued that no specific role has been ascribed to the accused persons so as

to show their common object for the purpose of establishing charge under Section

149 IPC. On such count as well Mr. Choudhury submits that the impugned judgment

and order dated 16.06.2017 is liable to be set aside by this Court.

29. In support of his aforesaid argument Mr. Choudhury has relied upon her

following decisions :-

1. (2016) 16 SCC 164 [ Kamta Yadav and others Vs. State of Bihar]

2. (2011)5 SCC 324 [ Kuldip Yadav and others Vs. State of Bihar]

3. (2007) 12 SCC 641 [ Dilawar Singh Vs. State of Delhi]

4. (2003)3 SCC 355 [Rajeevan and another Vs. State of Kerala].

30. By referring to a decision of this Court rendered in the case of Piyalal Barman

Vs. The State reported in 1970 CRI.L.J. 1599 Mr. Choudhury has further argued that, a

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Case Diary, not maintained in conformity with Rule 188 of the Assam Police Manual,

would create suspicion as regards the various stages of investigation and therefore,

would have a vitiating affect not only on the investigation but also on the trial. On

such ground the learned senior counsel prays for setting aside the conviction of the

appellants and for setting them at liberty.

31. Mr. B. M. Choudhury, learned counsel representing the two appellants in

Criminal Appeal No.318/2017, while adopting the above arguments has further

argued that none of the eye-witnesses have named his clients viz. Amir Ali and Sattar

Ali. Therefore, this is a case of no evidence against them. On such ground, the

appellants’ counsel prays for setting aside the impugned judgment and order dated

16.06.201 qua the appellant in Crl. Appeal No. 318/2017. In support of his above

argument, Mr. B. M. Choudhury has also referred to the decision in the case of Priyalal

Barman (supra) to submit that there are a number of lapses in the investigation in the

Police case, raising suspicion as to the manner in which the I.O. has recorded the

statements of the witnesses. Therefore, the benefit of doubt arising on account of

such lapses must go in favour of the appellants/accused.

32. Mr. M. Phukan, learned Additional Public Prosecutor, Assam, on the other

hand, has argued that the prosecution case is based on the testimony of as many as

five eye-witnesses who have not only given vivid description of the occurrence but

have also identified all the accused persons by describing the role played by them.

The learned Addl. P.P. submits that according to the eye-witnesses account, all the

accused persons were armed with lethal weapons and took part in the assault of the

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deceased and his son-in-law Omar Ali. Although there are some minor discrepancies

in the seizure-list, Mr. Phukan submits that in this case, the G.D. Entry made on

08.07.2008 was the basis of the investigation and therefore, the late receipt of ejahar

would not have any relevant bearing in the outcome of the appeal. Mr. Phukan has

also argued that the accused persons were hiding in the jungle in a secluded place

with the sole object of killing the deceased and therefore, mere presence of the

accused persons on the spot would be sufficient to charge them with the offence

coming within the fold of Section 149 of the IPC. In support of his above arguments,

Mr. Phukan has relied upon the following decisions :-

1. 1992 Supp(2) SCC 62 [Pradumansinh Kalubha Vs. State of Gujarat]

2. (1998)4 SCC 517 [Ram Bihari Yadav Vs. State of Bihar & Ors]

3. (2002)2 SCC 208 [Chandra Bihar Gautam and others vs. State of Bihar]

4. (2004) 4 SCC 205 [ Charan Singh and others Vs. State of U.P.]

5. (2010)7 SCC 477 [Sikandar Singh and others vs. State of Bihar]

6. (2012) 9 SCC 532 [Gajoo Vs. State of Uttarakhand]

7. (2017)11 SCC 195 [Yogesh Singh Vs. Mahabeer Singh and others]

33. We have considered the submissions advanced by learned counsel for both

sides and have also gone through the materials available on record.

34. PWs-2, 7, 13, 14 and 15 were all travelling together in motorbikes along with the

deceased person on the day of the occurrence and all of them had seen the

incident from close quarters, in light of the headlamp of the motorcycles. PW-13 was

pillion riding the motor bike driven by Wahab and , therefore, he had witnessed the

occurrence from the closest point. This witness has not only identified all the accused

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persons but has also implicated all of them in the commission of the crime. The

testimony of the other eye witnesses viz. PWs-2, 7, 14 and 15, corroborates the version

given by PW-13. These eye-witnesses have named all the accused persons by

ascribing specific roles to them by narrating the manner in which the accused

persons had attacked the deceased and had dealt fatal blows upon Wahab leading

to his death. They have also stated about the fatal injuries inflicted upon Omar Ali.

During their cross-examination, the testimony of these witnesses could not be shaken

by the defence side.

35. Taking note of the evidence on record, the learned trial court was of the view

that the testimony of the eye-witnesses i.e. PWs-2, 7, 13, 14 and 15 are reliable, more

so, since the eye-witnesses account of PWs-2 and 13 were recorded by the police at

the place of occurrence, immediately after the incident. The learned trial Court was

also of the view that the evidence adduced by PWs-2, 7, 13, 14 and 15 has remained

unshaken which goes to show that on 08.07.2008 at about 8.30 p.m. the accused

persons had committed the crime. The relevant observations made by the learned

trial Court is extracted herein below for ready reference :-

“PW 18 is the Investigating Officer and at the very outset of his deposition

he deposes that on 08-07-08 the information of the occurrence was reported

over phone and to that effect there is GD Entry No.338 and as directed he with

staff proceeded to the place of occurrence. In cross-examination he asserts

that he arrived at the place of occurrence at about 09-30 pm. He has

categorically deposed that many of the witnesses were examined by him on

the strength of that GD Entry. The eye-witness PW 2 testifies that after the

occurrence police came and interrogated him. Another eye-witness PW 13 in

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examination-in-chief deposes that while they were at the place of occurrence

the police came from Goalpara Police Station inquested the dead body and

interrogated him. Thus, it reveals that the Investigating Officer examined both

eye-witnesses particularly PW 2 & PW 13 immediately after the occurrence. As

the Investigating Officer examined eye-witnesses PW 2 and PW 13 immediately

after the incident, in that case it is less possibility of false implication about the

offenders. So, the testimony of PW 2, PW 7, PW 13, PW 14 and PW 15 cannot be

discarded merely on this ground otherwise there will be a wrong message in

this case.

The un-impeached evidence of PW 2, PW 7, PW 13, PW 14 and PW 15

clearly shows that on 08-07-08 at about 08-30 pm at Govindapur Rabhapara

under Goalpara Police Station accused Yousuf, Raijuddin @ Raju, Saizuddin,

Sher Ali, Amir Ali, Sattar Ali, Abdus Salam, Abdul Sattar (now deceased), abdul

Hai @ Dillar, Taher Ali @ Guddu, Mirazul, Sade kali and Sayed forming an

unlawful assembly in prosecution of their common object committed rioting

using force and violence, also with their common object wrongfully restrained

Abdul Wahab (deceased), PW 2, PW 7, PW 13, PW 14 and PW 15 on their way,

and intentionally with their common object intentionally committed murder of

Abdul Wahab at the spot, and with their common object voluntarily caused

hurt to Omar Ali (PW 14) and with their common object intentio0nally

attempted to commit murder of PW 14 by brutal assaults. The above accused

persons participated in the acts as stated hereinabove in prosecution after the

common object of that unlawful assembly. The multiple injuries inflicted on the

deceased & PW 14 by active participation of the accused persons clearly

shows enough that the assembly had the intention to kill deceased Abdul

Wahab and PW 14 – Omar Ali.

In view of the above, I am of the opinion that accused Yousuf, Raijuddin

@ Raju, Saizuddin, Sher Ali, Amir Ali, Sattar Ali, Abdus Salam, Abdul Hai @ Dillar,

Taher Ali @ Guddu, Mirazul, Sadek Ali & Sayed are found guilty for the offences

punishable u/s 147/341/323/307/302 of IPC read with Section 149 of IPC and I

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convict them thereunder.”

36. From the testimony of the I.O. (PW-18) it is apparent that the investigation in

this case had commenced on the basis of G.D. Entry No.338 which was received by

the Officer-in-Charge of Goalpara Police Station soon after the incident had taken

place. The ejahar in this case was lodged on 10.07.2008 i.e. two days after the

incident. It also appears from the testimony of PW-2 that some discussion was held

with the informant before the ejahar was lodged. However, PW-1 i.e. the informant

had clarified that he did not consult with the parents of the victim or his family

members before lodging the ejahar. The ejahar dated 10.07.2008 contains a footnote

which mentions that there was delay in lodging the ejahar since the informant was

busy with the treatment of injured Omar Ali and in performing obsequies of deceased

Abdul Wahab. PW-1 has also stated in his deposition that there was delay of one day

in lodging the ejahar since he was busy in Wahab’s burial. However, there was no

cross-examination of the PW-1 on this point. Therefore, this is not a case where there is

unexplained delay in lodging the ejahar. Moreover, the informant was not present in

the place of occurrence but he had reached there after the incident. The

occurrence took place in presence of eye-witnesses. It is, therefore, natural that the

informant would verify the true facts before lodging the ejahar, which might require

some discussion. However, even in these circumstances, it would be the duty of the

Court to examine the records and ascertain as to whether the ejahar is an after-

thought or the delay is for genuine reasons.

37. It has also come out from the evidence available on record that the police

was initially informed about the incident by a VDP member based on which a G.D.

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Entry was made. The investigation had commenced immediately thereafter based

on such G.D. Entry. There is no requirement in law to commence investigation only

after receipt of written report and the Police can begin investigation in any case

involving cognizable offence even on the basis of oral intimation. In such a case, the

written ejahar received at a subsequent point of time can only be treated as a

statement under Section 161 Cr.P.C.

38. In the case of Animireddy Venkata Ramana and others vs. Public Prosecutor,

High Court of Andhra Pradesh reported in (2008)5 SCC 368 the Hon’ble Supreme

Court has observed that when an information is received by an Officer-in-Charge of

a Police Station, he is expected to reach the place of occurrence as early as

possible. It was not necessary for him to take such a step only on the basis of written

First Information Report (FIR). It would be the duty of the State to protect the life of an

injured and also an endeavour to be made on the part of a responsible Police Officer

to reach the place of occurrence in a situation at the earliest.

39. Evidence available on record clearly establishes that on being instructed by

the Officer-in-Charge of Goalpara Police Station on the basis of the G.D. entry, the

I.O. i.e. PW-18 had reached the place of occurrence within an hour and he had not

only recorded the statements of some of the witnesses present there but had also

seized four motorbikes, some weapons and the wearing apparels of the deceased in

presence of the seizure witnesses. Thereafter, the ‘ejahar’ (written report) was

lodged. Situated thus, the subsequent written report or the so-called FIR, in the instant

case shall be hit by Section 162 of the Cr.P.C. As such, the G.D. entry, on the basis of

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which the investigation had commenced, would have to be construed as the FIR.

Viewed from this angle also, the so-called FIR marked as Ext.-1 was of little

consequence for punching any hole in the prosecution case.

40. By pointing out that the ejahar having been lodged on 10.07.2008 the I.O.

could not have mentioned about the police case no. in the seizure-lists Ext-6 & 7, the

learned counsel for the appellants have made an attempt to discredit the

investigation with a view to dent the prosecution case. However, from the bulk of

evidence available on record, we do not see any valid ground to doubt the fact that

the I.O. had, in fact, seized the four motorbikes, weapons and the clothes of the

victim. It may be so that after the registration of the Police case the I.O. had inserted

the case number in the seizure-lists so as to keep the record straight, which could very

well have been avoided by him but that alone would not be a ground to discredit

the investigation in the P.S. case by ignoring the other cogent evidences available on

record.

41. The next line of argument of the appellants’ counsel is pertaining to the failure

on the part of the I.O. to paginate the Case Diary and also to record the statement of

all the witnesses without delay. It is no doubt correct that the Case Diary had not

been paginated by the I.O. and we also find that there is some delay in recording the

statements of vital witnesses such as PWs-6 and 14. However, it is also apparent from

the evidence available on record that both these witnesses had suffered injuries

requiring them to undergo medical treatment. Under the circumstances, it is possible

that the I.O. was not in a position to record their statements immediately after the

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incident. Such delay on the part of the I.O. in recording the statement of the

witnesses would not, by itself, incur a fatal defect in the investigation, if the Court is

otherwise satisfied that the evidence on record is sufficient to establish the charge

brought against the accused beyond all reasonable doubt.

42. In the case of Ram Bihari Yadav (supra), the Hon’ble Supreme Court has

observed that in a case where the record shows that the investigating officer has

made a mess and/or had deliberately omitted to do what they ought to have done

so as to bail out the appellant who was a member of the police force or for any other

extraneous reasons, the interest of justice would demand such acts of omissions of the

officer of the prosecution should not be taken in favour of the accused for that would

amount to giving premium for the wrongs of the prosecution designedly committed

to favour the accused. In such cases, the story of the prosecution would have to be

examined dehors such omissions and contaminated conduct of the officials as

otherwise the mischief which was deliberately done would be perpetuated and

justice would be denied to the complainant party. This would obviously shake the

confidence of the people not merely in the law enforcing agencies but also in

administration of justice.

43. In another decision in the case of Gajoo (supra), the Hon’ble Supreme Court

had quoted with approval the observations made in the case of Dayal Singh Vs.

State of Uttaranchal [(2012)8 SCC 263] wherein, it was observed that in case of

defective investigation the court has to be circumspect in evaluating the evidence.

But it would not be right in acquitting the accused person solely on account of the

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defect; to do so would tantamount to playing into the hands of the investigating

officer if the investigation is designedly defective. It was also observed that the

contaminated conduct of the official should not stand in the way of evaluating the

evidence by the Court, otherwise the designed mischief would be perpetuated and

justice would be denied to the complainant party.

44. In the present case, after a careful analysis of the evidence available on

record, we are of the view that even though it can be said that there were some

lapses on the part of the I.O. such as, delay in recording statement of the witnesses,

his failure to collect medical evidence for the injuries sustained by PWs 6 & 14 and

also to send the seized apparels for FSL report etc. yet, we are of the view that such

lapses were not designed to reach any benefit to the accused persons in the trial. We

are, therefore, of the opinion that regardless of the lapses by the I.O., there is

sufficient evidence available on record to bring home the charges brought against

the accused persons.

45. In the case of Piyarilal Barman (supra) relied upon by the appellants’ counsel,

the Division Bench of this Court, in the context of Case Diary prepared without

pagination and in violation of Rule 188 of the Assam Police Manual, Part-V, has

observed that although Case Diary is a very important document which has to be

maintained faithfully and in a regular manner, the contents of the Case Diary cannot

be treated as evidence in a trial but the Court is entitled to peruse the same under

Section 172(2) of the Cr.P.C. so as to assist it during trial. This duty was incumbent upon

a Public Prosecutor and almost always upon a Court trying a serious offence and

Page No.# 30/36

when the prosecution and defence are both inadequate, it will enable the Court to

rise up to the occasion and discover for itself the material facts and circumstances

from the Case Diary which can be brought to light through the witnesses examined so

as to arrive at the truth in the interest of justice.

46. In the present case, having regard to the bulk of evidence available on

record, more particularly the testimony of the eye-witnesses, we are of the view that

the lapses in maintaining the Case Diary due to want of pagination would be of little

consequences on the prosecution case.

47. The learned Trial Court has disbelieved the testimony of Pw-6 on the ground

that no medical evidence could be produced by the prosecution side to prove her

injury. Drawing support from such observation of the trial court, the appellants’

counsel have argued that if the testimony of PW-6 is to be disbelieved then the

creditworthiness of the testimony of the other eye-witnesses, viz., PWs-2, 7, 13, 14 and

15 would automatically stand impeached, in which event, there would be no

evidence to sustain the conviction of the appellants in this case. We are unable to

agree with such submission of the appellants’ counsel for the following reasons. Firstly,

we have already indicated that there is evidence on record to show that the injured

persons got their medical treatment done privately and therefore, it is possible that

the statement of the doctors who had treated PW-6 was not recorded and her

medical records were also not collected by the I.O. at the relevant point of time.

However, that by itself could not have been a ground to disbelieve the testimony of

PW-6, in view of the ocular evidence available on record, more so, since the version

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of PW-6 finds due corroboration from the testimony of three eye-witnesses viz., PWs-7,

13 and 15.

48. Secondly, PW 6 had evidently reached the place of occurrence after the

incident took place and therefore, want of medical evidence to support her claim of

having sustained injury cannot in any manner, shaken the eye-witnesses account

who had seen the accused persons murder the victim from close distance under the

light coming from the headlamp of the four motorbikes. There is cogent evidence on

record to show that the accused persons viz., Raijuddin, Sher Ali, Saizuddin, Yusuf Ali,

Sadek Ali, Mirajul Haque, Abdul Salam, Abdul Sattar, Sayed Ali and Taher Ali had

attacked the deceased Abdul Wahab with sharp weapons in furtherance of a

common object to kill him and inflicted fatal blows on the person of Abdul Wahab.

49. The next line of argument of the learned counsel for the appellants is to the

effect that the witnesses have not ascribed specific roles to the accused persons and

therefore, this is not a case where Section 149 of the IPC would be attracted. After

going through the evidence of the eye-witnesses we are also unable to agree with

the said contention of the appellants’ counsel on this count as well. On the contrary,

we find that the eye-witnesses have categorically mentioned that the accused

persons have acted in tandem, towards a common object which is to assault the

deceased Abdul Wahab.

50. In the case of Chandra Bihari Gautam and others vs. State of Bihar reported in

(2002)9 SCC 208 the Hon’ble Supreme Court had the occasion to deal with Section

149 of the I.P.C. pertaining to common object. In that case, an argument was

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advanced to the effect that even if the occurrence is held to have taken place in

the manner alleged by the prosecution and the accused persons were seen on the

spot, they cannot be convicted and sentenced if the prosecution fails to establish the

existence of a common object amongst the accused persons. Dealing with the

above argument, the Apex Court had observed that Section 149 IPC has two parts.

The first part deals with the commission of an offence by a member of an unlawful

assembly in prosecution of the common object of that assembly and the second part

deals with the liability of the members of the unlawful assembly who knew that an

offence was likely to be committed in prosecution of the object for which they had

assembled. It was further held that knowledge of the consequential action in

furtherance of the initial common object is sufficient to attract the applicability of

Section 149 for holding the members of the unlawful assembly guilty for the

commission of the offence by any member of such assembly.

51. In the case of Charan Singh and others (supra), the Hon’ble Supreme Court

has further observed that Section 149 of the IPC has its foundation on constructive

liability which is the sine qua non for its operation. The emphasis is on the common

object and not on common intention. Mere presence in an unlawful assembly cannot

render a person liable unless there was a common object and he was actuated by

that common object and that object is one of those set out in Section 141. Where

common object of an unlawful assembly is not proved, the accused persons cannot

be convicted with the help of Section 149.

52. In the case of Sikandar Singh & others (supra), the Hon’ble Supreme Court has

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observed as follows :

“15. The provision has essentially two ingredients viz. (i) the commission

of an offence by any member of an unlawful assembly and (ii) such

offence must be committed in prosecution of the common object of the

assembly or must be such as the members of that assembly knew to be

likely to be committed in prosecution of the common object. Once it is

established that the unlawful assembly had common object, it is not

necessary that all persons forming the unlawful assembly must be shown

to have committed some overt act. For the purpose of incurring the

vicarious liability for the offence committed by a member of such

unlawful assembly under the provision, the liability of other members of

the unlawful assembly for the offence committed during the

continuance of the occurrence, rests upon the fact whether the other

members knew before hand that the offence actually committed was

likely to be committed in prosecution of the common object.”

53. In the aforesaid decision it was further held that a “common object” does not

require a prior concert and a common meeting of minds before the attack. It is

enough if each member of the unlawful assembly has the same object in view and

their number is five or more and that they act as an assembly to achieve that object.

The “common object” of an assembly is to be ascertained from the acts and

language of the members composing it and also from a consideration of all the

surrounding circumstances.

54. In the present case, as noticed above, the accused persons were found to

have laid an ambush behind the bamboo bush, in a secluded place, that too, after

nightfall. Evidence of the eye-witnesses has established that no sooner had the four

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bikes, including the one in which the victim was travelling, had reached the particular

spot i.e. near the Kali Mandir, the first bike was toppled by using barriers. Thereafter,

one of the accused, viz., Yusuf Ali had thrown some liquid substance aimed at the

deceased, which later on, was detected as chilli powder. After that, all the accused

persons, who were hiding behind the bushes, had emerged armed with deadly

weapons and assaulted the victim Abdul Wahab by inflicting fatal blows on his body

and also injuring his son-in-law Omar Ali when the latter tried to resist the accused

from attacking his father-in-law Abdul Wahab and thereafter disappeared in the

jungle. Save and except Abdul Wahab, the unlawful assembly of the accused

persons did not attack any other person nor did they indulge in any other activity. As

a matter of fact, injured Omar Ali (PW-14) received injuries only because he had

stepped forward to resist the accused persons from attacking his father-in-law Abdul

Wahab. The above evidence leaves no room for doubt in our mind that the

common object of the unlawful assembly was only to kill the deceased Abdul Wahab

by inflicting fatal blows in his body. The nature of injuries appearing from the post-

mortem report Ext-11 also corroborates the aforesaid position. Therefore, it is

established that the accused persons had acted in an unlawful assembly with the

common object to kill the deceased Abdul Wahab.

55. There is direct evidence in this case and all the eye-witnesses have witnessed

the occurrence from close distance. Therefore, it is natural that their would be

similarity in their testimony. However, that alone cannot be a ground to doubt the

creditworthiness of the testimony of the eye-witnesses, more so, since there is no

contradiction or inconsistencies in their version. Having regard to the facts and

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circumstances of the case we are of the view that there was no scope for any person

to be accidentally present in the scene of occurrence at such a secluded place,

/that too after nightfall.

56. From a careful analysis of the evidence brought on record, we are of the view

that the broad features of the case is eloquently supported by the versions of the

eye-witnesses which is sufficient to conclude that the prosecution has succeeded in

establishing the charge brought against 11 (eleven) accused (appellants) beyond

reasonable doubt. Although the defence side has adduced evidence, the DW-1 & 2

could not even correctly mention the date and time of the incident. Therefore, their

testimonies would be of no help to the defence side.

57. Having held as above, we are, however, of the view that the evidence

available on record is insufficient to establish the charge brought against the

accused/appellant No.2, Sattar Ali, in Criminal Appeal No.318/2017.

58. From a close scrutiny of the testimony of the eye-witnesses, we find that one

Abdul Sattar was identified as a member of the unlawful assembly who had

apparently died before commencement of trial. However, none of the witnesses

have taken the name of “Sattar Ali”. If that be so, there is serious doubt as regards the

presence of the appellant No.2, Sattar Ali in the place of occurrence on the date on

which the occurrence took place. The benefit of such doubt must go in favour of

appellant No.2. The learned Additional Public Prosecutor, Mr. Phukan, has also fairly

agreed to the same.

59. For the reasons stated herein before, we do not find any justifiable ground to

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interfere with the impugned judgment and order dated 16.06.2017 passed by the

learned Sessions Judge, Goalpara save and except the conviction of appellant No.2,

Sattar Ali, in Criminal Appeal No.318/2017.

60. In the result Criminal Appeal No.300/2017 is held to be devoid of any merit and

the same is accordingly dismissed.

61. In so far as the Criminal Appeal No.318/2017 is concerned, the conviction of

the appellant No.2, viz., Sattar Ali, is hereby set aside. The said appellant is hereby

acquitted and is set at liberty. We, however, affirm the conviction of appellant No.1

viz., Amir Ali.

62. The Criminal Appeal No.318/2017, therefore, stands partly allowed.

63. Appellant Sattar Ali be forthwith released from jail if his detention is not

required in connection with any other case.

Send back the LCR.

JUDGE JUDGE

T U C/Sukhamay

Comparing Assistant