REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1905 OF 2009

SAMSUL HAQUE ….Appellant

VERSUS

THE STATE OF ASSAM ….Respondent

WITH

CRIMINAL APPEAL NO. 246 OF 2011

J U D G M E N T

SANJAY KISHAN KAUL, J.

1.The incident is of 17.3.1997 at 7:00 a.m. in the morning. Keramat

Ali Maral (the deceased) was having tea at the tea stall known as Kalia

Hotel. It is alleged that Abdul Hai, Abdul Rashid, Imdadul Islam, Rahul

Amin, Mofizuddin Islam and Abdul Rahim Faruki, being the first six

accused entered the stall and all of a sudden accused Nos.2 & 3 fired at

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Keramat Ali with a pistol, while the other accused injured him by

stabbing and hacking with daggers, swords, etc. Keramat Ali is stated to

have died on the spot. The son of Keramat Ali, Nazrul Islam (PW-3)

lodged the FIR, stating that he was present at the site along with other

witnesses, but when they offered resistance, they were threatened with

pistols. To save their life, they ran away from the site. Insofar as accused

Nos.7, 8 & 9 are concerned, it is stated that “further it may be mentioned

that the incident took place at the instance and instigation of accused

Nos.7, 8 and 9.”

2.On the investigation being completed, a charge-sheet was filed and

charges were framed by the Sessions Judge under Sections 147, 148,

302/149 and 302 of the IPC against all. Accused Nos.7 to 9 faced

charges under Sections 302/109 of the IPC. In the course of trial,

accused No.4, Rahul Amin, absconded. Accused No.1, Abdul Hai, died/

was allegedly murdered during the course of trial. On completion of trial

the Sessions Judge, Morigaon found that accused No.1 was the main

culprit who had killed the deceased, Keramat Ali. The trial court also

found that the guilt of accused Nos.5 & 6 was also established beyond

reasonable doubt.

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3.The convicted accused filed an appeal before the Gauhati High

Court and so did the State of Assam qua the accused who had been

acquitted. The appeal of the convicted accused was dismissed by the

High Court and the Special Leave Petition (‘SLP’) filed against the same

was also dismissed and, thus, that matter attained finality.

4.The impugned judgment dated 12.2.2009 deals with the appeal of

the State and has reversed the judgment of the trial court convicting the

five accused.

5.Accused No.9, Samsul Haque has filed Crl. Appeal No.1905/2009,

while Abdul Rashid (accused No.2) and Imdadul Islam (accused No.3)

filed Crl. Appeal No.246/2011. It is these three accused who are before

us.

6.We have heard Mr. R.K. Dash, learned Senior Counsel for accused

No.9, Mr. Bijan Ghosh, learned counsel for accused Nos.2 & 3 and

learned counsel for the State, Mr. Debojit Borkakati who took us through

the record before us. We have also perused the trial court record.

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7.We would first deal with the witnesses produced by the

prosecution to prove their case. Four witnesses were projected as eye-

witnesses to the occurrence, viz., Taher Ali (PW-1); Nazrul Islam (PW-3),

who is the son of the deceased and the informant; Sorhab Ali (PW-4),

brother of the deceased; Mozammil Hussain (PW-6), son of the elder

brother of the deceased. While three of the witnesses are relatives, PW-1

is an independent witness. It may be noted that Mr. Dilip Modak, owner

of the hotel, or any other independent witness present at the place of

occurrence was not examined. Mr. Somnath Bora, the IO was produced

as PW-7. It may also be noted that the defence examined only one

witness, i.e. Siraj Ali (DW-1), who was at the place of the occurrence as

recognised by the prosecution.

8.Learned Senior Counsel for accused No.9 contended that the

complainant in the complaint itself made a very vague statement that “the

incident took place at the instance and instigation of” the said accused

and two others. Nothing more was said as to how it was at the instance

and instigation of these three accused.

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9.The second limb of his submission was that three of the witnesses,

PW-3, PW-4 and PW-6 were interested and inimical witnesses inasmuch

as PW-3, the son of PW-4 and PW-6 were accused in the murder case of

the main accused, accused No.1, Abdul Hai. The testimony of these three

witnesses was stated to be full of exaggerations, embellishments and

inconsistencies. An important aspect emphasised in this behalf is that the

version given by PW-3 in the complaint, as recorded in the FIR, is at

variance with the narration of the incident when the said witness entered

the witness box. Thus, while on the one hand in the complaint it was

alleged that the incident happened at the instance and instigation of the

appellant and two other accused, in the testimony before the court it has

been stated that these three persons ordered the other accused to catch

hold of his father, the deceased, whereafter accused Abdul Rashid, who is

accused No.2 shot at the deceased with a pistol while accused No.1 hit

him in the chest, hands and legs with a sword. The testimony of PW-4

and PW-6 states that accused No.9 and two others asked other

accomplices to hit and kill the deceased.

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10.The aforesaid testimony, it was submitted before us, has to be read

in the context of the testimony of the only independent witness, i.e., PW-

1, who did not implicate the appellant in the crime. In fact, in his

testimony he has specifically stated that he did not see accused No.8 and

accused No.9 either inside or outside the hotel. Learned Senior Counsel

also submitted that a reading of the complaint, resulting in the FIR would

show that the appellant had not come to the place of occurrence along

with the others. DW-1, who was present at the place of occurrence,

according to the prosecution, stated that accused No.1 and two others

committed the crime, but he had not seen any one of the family members

of the deceased at the place of the occurrence. In fact, the suggestion in

the cross-examination of the said witness by the prosecution was that

accused No.7 had given orders to assault the deceased, but that

suggestion had been denied by the witness.

11.The third limb of the submission of the learned Senior Counsel is

based on the statement of accused No.9, recorded under Section 313 of

the Cr.P.C. It was argued that the questions asked did not really put the

case of the prosecution to the accused as was mandatory. Only two

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questions were put in the said statement, which are as under:

“Question:PW4 Sohrab Ali has averred in evidence that at about

7 a.m. 17.3.97, you said, “Kill Keramat Ali.” What is your reply?

Ans: I was not there in the place of occurrence. My house

is at a distance of 4 or 5 kilometers from there.

Question:PW6 has stated that you asked the other accused to

kill Keramat. What do you say?

Ans: No I was not present at the place of occurrence. A

civil suit is pending over the complainant’s purchasing a plot of

land. I was one witness to (the execution of) the sale deed. Out of

that grudge they filed a false case against me.”

12.The case of PW-3 was, thus, not even put to the accused.

13.In the aforesaid context learned Senior Counsel has referred to the

judgment of this Court in Sharad Birdichand Sarda v. State of

Maharashtra

1

to contend that if the circumstances are not put to the

accused in his statement under Section 313 of the Cr.P.C., they must be

completely excluded from consideration because the accused did not

have any chance to explain them. This is stated to be the consistent view

of this Court starting from 1953 in the case of Hate Singh Bhagat Singh

1 (1984) 4 SCC 116

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v. State of Madhya Bharat

2

. Learned Senior Counsel also referred to the

judgment in Sujit Biswas v. State of Assam

3

for the proposition that the

very purpose of examining the accused persons under Section 313 of the

Cr.P.C. is to meet the requirement of the principles of natural justice, i.e.,

audi alteram partem. The accused, thus, must be given an opportunity to

explain the incriminating material that has surfaced against him and the

circumstances which are not put to the accused in his examination under

Section 313 of the Cr.P.C. cannot be used against him and must be

excluded from consideration.

14.The fourth limb of the submission of the learned Senior Counsel

arose from the acquittal of accused No.9 by the trial court and the

conviction on reversal of acquittal in appeal. Thus, the plea was that the

principles of such reversal require that the view of the trial court should

be respected unless and until the views are such as were perverse or

otherwise unsustainable. Ordinarily, the judgment of acquittal, where

two views are possible, should not be set aside even if the view formed

2AIR 1953 SC 468

3 (2013) 12 SCC 406

8

by the appellate court may be a more probable one.

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15.The last submission of the learned Senior Counsel, possibly

because it is the weakest one, was that the ingredients of common

intention under Section 34 of the IPC and abetment under Section 107 of

the IPC are distinct and separate. The principle of constructive liability,

enunciated in Section 34 of the IPC does not create a substantive offence,

unlike Section 107 of the IPC, which is an independent offence. It was,

thus, submitted that a person charged with Section 109 of the IPC (the

punishment provision for Section 107 of the IPC) cannot be convicted for

the main offence under Section 34 of the IPC. To advance this plea,

reliance was placed on Babu v. State of Tamil Nadu

5

. However, in the

factual matrix of that case the person was charged under Section 34 of the

IPC and not under Section 109 of the IPC. The observations made in that

judgment, thus, have to be read in that context since substantive offence

as per Section 107 with punishment under Section 109 of the IPC was not

an aspect which the accused was charged with. The factual matrix in the

4 Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13

SCC 657

5 (2013) 8 SCC 60

9

present case is the opposite where the plea is that there is no charge under

Section 34 of the IPC but charge of abetment has been laid under Section

109.

16.The aforesaid last plea can be dealt with at this stage itself as the

issue is no more res integra in view of the judgment of this Court in

State of Orissa v. Arjun Das Agarwal & Anr.

6

opining that the settled

position of law is that Section 34 of the IPC does not create a distinct

offence and it is with the participation of the accused that the intention of

committing the crime is established when Section 34 of the IPC is

attracted. To rope in a person with the aid of Section 34 of the IPC, the

prosecution has to prove that the criminal act was done by the actual

participation of more than one person and that act was done in

furtherance of a common intention of all engaged in prior concert.

17.In view of the aforesaid, the last plea of the learned counsel is only

stated to be rejected.

18.On examination of the earlier pleas advanced by learned Senior

6 AIR 1999 SC 3229

10

Counsel on behalf of accused No.9, we find merit in the same.

19.PW-3 in his complaint did state that the incident took place at the

instance and instigation of accused No.9 along with accused Nos.7 & 8.

20.However, in his deposition it has been stated that these persons

asked the other accused to catch hold of the deceased. This by itself, in

our view, would not be fatal for the case of the prosecution. Similarly,

there is some variation between what exactly these three persons stated,

as available from the testimonies of even PW-4 and PW-6. However, the

crucial aspect is that PW-1, the only independent witness, does not even

implicate accused No.9, much less assign any role to him. He has stated

that he had not even seen accused No.9, even though he was the person

who was at the place of occurrence. DW-1, who was not produced as a

witness by the prosecution, though was stated to be present at the place of

occurrence, was examined by the defence and deposed against the main

accused (accused No.1) and others, while not assigning even the factum

of presence to accused No.9. Interestingly, even when the prosecution

sought to cross-examine the said witness, the case of the prosecution was

put as if only accused No.7 ordered the other accused persons to assault

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the deceased. Had accused No.9 played a role, that would logically have

been put to DW-1 by the prosecution.

21.The most vital aspect, in our view, and what drives the nail in the

coffin in the case of the prosecution is the manner in which the court put

the case to accused No.9, and the statement recorded under Section 313

of the Cr.P.C. To say the least it is perfunctory.

22.It is trite to say that, in view of the judgments referred to by the

learned Senior Counsel, aforesaid, the incriminating material is to be put

to the accused so that the accused gets a fair chance to defend himself.

This is in recognition of the principles of audi alteram partem. Apart

from the judgments referred to aforesaid by the learned Senior Counsel,

we may usefully refer to the judgment of this Court in Asraf Ali v. State

of Assam

7

. The relevant observations are in the following paragraphs:

“21. Section 313 of the Code casts a duty on the Court to put in an

enquiry or trial questions to the accused for the purpose of

enabling him to explain any of the circumstances appearing in the

evidence against him. It follows as necessary corollary therefrom

7 (2008) 16 SCC 328

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that each material circumstance appearing in the evidence against

the accused is required to be put to him specifically, distinctly and

separately and failure to do so amounts to a serious irregularity

vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct

dialogue between the Court and the accused. If a point in the

evidence is important against the accused, and the conviction is

intended to be based upon it, it is right and proper that the accused

should be questioned about the matter and be given an opportunity

of explaining it. Where no specific question has been put by the

trial Court on an inculpatory material in the prosecution evidence,

it would vitiate the trial. Of course, all these are subject to rider

whether they have caused miscarriage of justice or prejudice. This

Court also expressed similar view in S. Harnam Singh v. The State

(AIR 1976 SC 2140), while dealing with Section 342 of the

Criminal Procedure Code, 1898 (corresponding to Section 313 of

the Code). Non- indication of inculpatory material in its relevant

facets by the trial Court to the accused adds to vulnerability of the

prosecution case. Recording of a statement of the accused under

Section 313 is not a purposeless exercise.”

23.While making the aforesaid observations, this Court also referred

to its earlier judgment of the three Judge Bench in Shivaji Sahabrao

Bobade v. State of Maharashtra

8

, which considered the fall out of the

omission to put to the accused a question on a vital circumstance

appearing against him in the prosecution evidence, and the requirement

8 (1973) 2 SCC 793

13

that the accused’s attention should be drawn to every inculpatory material

so as to enable him to explain it. Ordinarily, in such a situation, such

material as not put to the accused must be eschewed. No doubt, it is

recognised, that where there is a perfunctory examination under Section

313 of the Cr.P.C., the matter is capable of being remitted to the trial

court, with the direction to retry from the stage at which the prosecution

was closed

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.

24.We are, however, not inclined to follow that course in the given

circumstances of this case as the inconsistencies in the testimonies also

create a doubt in the case of the prosecution qua any role of accused

No.9. The aforesaid being the factual matrix, the appellate court could

hardly have overturned the acquittal of the trial court into one of

conviction. The trial court took note of the close relationship of PW-3,

PW-4 & PW-6 to the deceased, as also the array of the accused and the

murder of accused No.1, to come to the conclusion that the abetment of

accused No.9, as alleged, had not been proved beyond reasonable doubt.

In fact, it is opined that there is no evidence that the said accused was

inside or outside Kalia Hotel at the time of the occurrence. Given the

9 Shivaji Sahabrao Bobade v. State of Maharashtra (supra)

14

circumstances, while not disagreeing with the legal proposition stated in

the impugned judgment, that there is no law that the evidence of relatives

cannot be acted upon, but, with extra care and caution, the presence of

disinterested witnesses as PW-1 and DW-1 relate another story. The

finding in the impugned order, that in the FIR filed by PW-3 as the

complainant, on the very date of the occurrence, setting out the

involvement of all the accused as clearly stated, again cannot be

sustained for the reason of the improvements and embellishments

between what was stated in the FIR and what came from the mouth of

PW-3 as his testimony in the court.

25.We are, thus, of the view that the prosecution has not been able to

establish a case against accused No.9, much less beyond reasonable

doubt.

26.Now, turning to the case of accused Nos.2 & 3, who are still in

custody, unlike accused No.9, who has since been enlarged on bail by this

Court.

27.Learned counsel sought to adopt the arguments advanced on behalf

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of accused No.9, but then the same would not be of much use as the case

of accused No.9 is quite different from the case against accused Nos.2 &

3.

28.A perusal of the order of the trial court would show that what has

weighed in acquitting these two accused was the fact that in the

testimony of the Doctor (PW-5), who performed the post-mortem

examination on the body of the deceased, a number of injuries were

found, caused by sharp pointed objects. In the cross-examination PW-5

has specifically stated that none of the injuries is a gun-shot injury. Thus,

the medical evidence suggests the use of daggers and a sword. The plea

of the Public Prosecutor was that the gun used by these two accused (as

according to the role assigned to them) may have been used only to scare

away the persons. However, there has been no seizure of arms. Accused

No.1, the main culprit, was subsequently murdered, and the related

witnesses in the present case are the accused. PW-6 also did not see the

firing of the gun, though he claims to have heard the gun-shots though

PW-3 and PW-4 state that they saw the firing. The anomaly is that all the

accused were standing together.

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29.On a question put by the court, whether any bullets or bullet marks

were found at the site, learned counsel for the State fairly stated in the

negative.

30.The question, which, thus, arises is that whether, within the

parameters required for reversal of an order of acquittal, the needful is

met in the present case.

31.The impugned judgment is, once again, predicated on a reasoning

placing reliance on the testimony of the related witnesses. The reason to

treat the same with some caution has already been set out by us

hereinbefore. The testimony of PW-6, that he saw the gun being fired,

but could not make out whether a bullet hit the deceased or not has been

taken into account, but, in the context of the overall testimony of the eye-

witnesses, the story set forth by the prosecution and the witnesses was

found to be believable by the High Court. However, this story does not

deal with the aforesaid aspects noted by the trial court, i.e., no bullet

injury, the weapon not being recovered, no bullets or bullet marks being

found at the place of occurrence and the inconsistencies in the

17

testimonies of the witnesses. The trial court rightly observed that it was

accused No.1 who was the main accused, who was subsequently

murdered.

32.We may, however, note that insofar as the statement of accused

No.2, under Section 313 of the Cr.P.C. is concerned, the testimonies of

PW-3, PW-4 and PW-6 all have been put to him but the said accused

claimed absence from the place of the occurrence. As far as accused

No.3 is concerned, once again, the testimonies of all the three eye-

witnesses have been put to him, but the role sought to be assigned to him

is stated to be a hit with the dagger, and not the role of firing at the

accused as set out in the FIR.

33.The subsequent testimonies, however, sought to assign a different

role than the one assigned in the FIR, bringing about an inconsistency.

The view taken by the trial court is, at least, a plausible view though that

may not be the only plausible view or if one may say even the less

probable one.

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34.We are, thus, of the considered opinion that the prosecution has not

been able to prove the case beyond reasonable doubt against these two

accused, and they must get the benefit of doubt and consequently have to

be acquitted.

35.The result of the aforesaid findings is that Samsul Haque, accused

No.9 is entitled to a clean acquittal. He is already on bail and thus, the

bail bonds stand discharged. Abdul Rashid & Imdadul Islam, accused

Nos.2 & 3 respectively, are entitled to the benefit of doubt and are

consequently acquitted. The said accused may be released forthwith.

36.The appeals are accordingly allowed, leaving the parties to bear

their own costs.

...……………………………J.

[Sanjay Kishan Kaul]

...……………………………J.

[K.M. Joseph]

New Delhi.

August 26, 2019.

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