IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH CRIMINAL APPEAL NO.

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1 1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH CRIMINAL APPEAL NO.168/2004 APPELLANTS 1. Md Kurban Ali, S/o- Mofed Ali, Resident of Lungjhar village, P/o- Fagunagaon under Bijni Police Station, District- Bongaigaon, Assam 2. Md Abbas Ali, S/o- Late Md Mofed Ali, Resident of Lungjhar village, P/o- Bongaigaon under Bijni Police Station, District- Bongaigaon, Assam 3. Md Motleb Ali, S/o- Late Ismail Ali, Resident of Lungjhar village, P/o- Fagunagaon under Bijni Police Station, District- Bongaigaon, Assam 4. Md Sofi Ali, S/o- Late Suroj Jamal Seikh, Resident of Lungjhar village, P/o- Fagunagaon, District- Bongaigaon, Assam By Advocates : Mr HRA Choudhury, Sr Advocate Ms A Saikia, Mr AT Sarkar Versus RESPONDENT The State of Assam By Advocate : Mr Z Kamar, PP, Assam BEFORE HON BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON BLE MR JUSTICE IA ANSARI DATE OF HEARING : DATE OF JUDGMENT AND ORDER :

2 2 JUDGMENT AND ORDER (ORAL) (Ansari, J) Vide judgment and order dated passed in Sessions Case No.30(B)/01 by the learned Adhoc Addl Sessions Judge, Bongaigaon all the present four appellants were convicted u/s 302 read with Sec 34 of the IPC. 2. The case of the prosecution as unfolded during trial may briefly be stated thus - On at about 11 AM when Joynal Abedin in the company of Atowa Bahadur (PW 2) and Almas Ali (since deceased) was proceeding towards Bijni, pushing his bicycle, and came near the house of accused Kurban Ali (appellant No.1) accused Abbas Ali (appellant No.2) came out of Kurban Ali s house and held Almas Ali s hand whereupon accused Kurban Ali came out and gave a blow with dao on the neck. Almas tried to flee but he was chased by accused Sujmal Haque, Motleb Ali, Surman Ali, Sofi Ali and Nur Nobi. Having covered a small distance Almas fell in the paddy field and all the accused persons gave blows with the weapons which they had in their hands. Accused Sofi Ali and Motleb Ali gave blows on Almas with daggers. On hearing hue and cry raised at the place of occurrence the accused persons fled away. Kurban Ali (PW 2) son of Almas Ali came to the place of occurrence on hearing hue and cry and saw the occurrence of assault on his father whereupon PW 1 and PW 2 went to Bijni Police Station where PW 1 lodged the First Information Report (FIR) (Ext-1) naming all the seven persons as accused. Based on the FIR a case was registered against the accused persons. The police visited the place of occurrence and having

3 3 found Almas lying dead at the place of occurrence held inquest over the dead body. On completion of investigation police framed charge against all the seven accused named in the FIR u/s 302 read with Sec 34 IPC. While accused Sujmal Haque, Surman Ali and Nurnabi absconded the remaining four accused, who are appellants in this appeal, faced the trial. 3. During trial all the appellants pleaded not guilty to the charges framed u/s 302 read with Sec 34 IPC. In support of their case the prosecution examined altogether ten witnesses. Having found all the appellants guilty of the charges framed against them the learned trial court convicted them accordingly and sentenced them to suffer imprisonment for life and pay find of Rs.5000/- each and in default of payment a fine RI for a further period of two months. Hence this appeal by the accused persons. 4. We have heard Mr HRA Choudhury, learned senior counsel appearing on behalf of the accused appellants and Mr Z Kamar, learned Public Prosecutor, Assam. 5. Appearing on behalf of the appellants Mr Choudhury, learned senior counsel has, broadly speaking, challenged the conviction of the appellants on the ground that all the eye witnesses, whom the prosecution has examined in this case, are related to the deceased and hence they are interested witnesses; that according to the evidence on record there are several houses near the place of occurrence but none other than the relatives of the deceased have been examined as eye witnesses and that the evidence adduced by the eye witnesses are inconsistent and there is variation between the description of the

4 4 occurrence as given in the FIR and the occurrence as has been described at the trial by the witnesses. The evidence on record does not show that all those, who have been named as assailants share the common intention of causing death of the said deceased. 6. Resisting the appeal the learned Public Prosecutor has submitted that the witnesses who have been examined by the prosecution are natural witnesses and except PW 1, who had been an witness to the occurrence from its beginning too the end, none of the witnesses had seen the entire incident inasmuch as PW 7, who was accompanying PW 1 and the said deceased, at the time they were proceeding and the said deceased was caught hold of by accused Abbas, had ran away from the place of occurrence out of fear when there was an attempt to assault him too and would not have, therefore, seen the entire occurrence and sofar as the other witnesses are concerned them came to the place of occurrence on being attracted by hue and cry raised at the place of occurrence and hence in the circumstances, except PW 1, all the witnesses could not describe the events parrot like from the beginning to the end. The learned Public Prosecutor also pointed out that the fact that all the witnesses have not given same description of all the occurrence is an indication of the credibility of the witnesses and they can, therefore, be safely relied upon. It has been further pointed out by the learned Public Prosecutor that the deceased sustained multiple injuries by sharp cutting and pointed weapon, such as, dao and daggers and in such circumstances the learned trial court has correctly concluded that the accused, who had faced the trial, and the ones who have absconded, shared common intention to put an end to the life of the deceased and had in furtherance of their common intention killed him. The conviction

5 5 of the accused appellants may, therefore, be maintained, so contends the learned Public Prosecutor. 7. Bearing in mind the submissions made on behalf of the accused appellants and the State we first start with the evidence of the doctor (PW 8). According to the evidence of this witness on he had performed post mortem examination on the dead body of Almas Ali and found as follows :- 1. Deep cut injury 10 X5 in the back of the middle of the neck with laceration of spinal cord. 2. Deep cut injury 10 X5 of face in the middle of the nose nos perforating injuries in the middle of the abdomen (Torn) perforation of intestine cut injuries in the right side of the chest with extrusion of lung tissue. 5. Cut injury in the left wrist joint which divided the both bones of th left fore arm in its lower end. 6. Cut injury in the left elbow joint. PW 8 has deposed that the injuries, as described above, were ante mortem in nature and blood was found present in and around the injuries. According to the opinion of the PW 8 the death was cause due to shock and haemorrhage as a result of the injuries sustained by the deceased, the injuries have been caused by sharp cutting weapons. The doctor has also opined that the injuries sustained by the said deceased were sufficient to cause death. It may now be noted that the evidence given by PW 8 as well as the opinion with regard to the nature of injuries found on the said dead body, the nature of weapon which might have been used and the cause of death had not been in dispute at the trial. This apart, we have carefully examined the evidence given by PW 8 and we find no reason to

6 6 disbelieve his findings. Accepting the evidence of the injuries, which the said deceased had sustained, we find it safe to conclude that the said deceased met with the death as a result of the injuries found on his body by PW 8. From the nature of the injuries which have been sustained by the said deceased it is also not difficult to conclude that the injuries were caused by sharp weapons. In the light of the medical evidence on record we now turn to the evidence of PW As already indicated above, PW 1 has claimed that he along with his uncle Almas Ali and PW 2 were proceeding towards Bijni from their house when the occurrence took place. Describing the occurrence PW 1 deposed that he was pushing his bicycle accompanied by Almas Ali and PW 2. When they came infront of the house of accused Kurban Ali, accused Abbas Ali came out of the house of the accused Kurban Ali and caught hold of Almas Ali. Immediately thereafter Kurban Ali came out of his house and gave a blow on the neck of Almas with a dao. It is also in the evidence of PW 1 that accused Abbas inflicted a blow with dao on the deceased person. Describing further, the PW 1 has deposed that the accused Motleb Ali and Safi Ali also inflicted dagger blows on Almas and Almas started to run but the accused pursued him and when Almas fell down on the ground at a distance of about 150 cubits from accused Kurban s house the accused persons beat and killed him It is also in the evidence of PW 1 that on being threatened by accused Nurnabi, Mazamel and Surman he ran from the place of occurrence and was standing near the house of one Jamer Ali. Jamere Ali s house being 50 cubits far from the place of occurrence. PW 1 has further deposed that Almas Ali had sustained several injuries on his neck, head, back, chest and abdomen. Almas Ali s son Kurban Ali (PW 2) came and both of them went to police station and he lodged the FIR which is Ext-1.

7 7 9. We have very carefully scrutinized the evidence of PW 1 but we do not find that anything could be elicited by the defence to show that the evidence of this witness, describing that the appellants had assaulted his uncle Almas, is untrue or exaggerated. We also noticed that in his cross examination PW 1 deposed that one lady by name Sakha was coming behind them and we find that this lady Sakha has been examined as PW 5. We, therefore, now turn to the evidence of PW According to PW 5 all the accused persons are co-villagers and on the day of the occurrence while she was proceeding towards the southern direction from her house she saw accused Abbas holding Almas Ali s hand in front of the house of accused Kurban Ali and at that time PW 1 and PW 7 were with Almas. While Accused Abbas Ali was holding the hands of Almas Ali accused Kuber Ali came and gave a blow with a dao on the neck of Almas. Accused Accused Safi Ali and Motleb came to the place of occurrence armed with dagger and assaulted Almas. It is in the evidence of PW 5 that though Almas tried to run away the accused persons pursued him and when Alams fell down he was further assaulted by the accused persons. It is also in the evidence of PW 5 that on witnessing the occurrence PW 7 fled away. Although PW 5 was put to cross examination by the defence nothing in particular could be elicited by the defence to show that the evidence given by this witness is not safe and rely upon. The evidence given by the PW 5 has even remained unshaken on material particulars and we see no reason to disbelieve her. 11. Next to the evidence of PW 5 is the evidence of PW 7 who was accompanying the deceased at the time of the occurrence. According to his evidence when he was proceeding along with PW 1 and the

8 8 deceased towards Bijni by pushing his bicycle and happened to be near the house of accused Kurban, accused Abbas, whose house is adjacent to the house of accused Kurban, came out followed by accused Motleb and Safi Ali. PW 7 has deposed that the accused Motleb threatened him by showing him a dagger and pushed him away and accused Kurban gave a blow with a dao on Almas. Witnessing the assault on Almas and on being threatened by accused Motleb, PW 7, according to what he has deposed, fled away from the scene and it was after about an hour of the occurrence that he came back to the place of occurrence and found Almas lying dead in the nearby field where many people had gathered. In his cross examination PW 7 deposed that he had fled away the scene immediately after attack on Almas and it was accused Kurban Ali who had first gave a blow with a dagger on Almas s neck. Nothing could be pointed out, one behalf of the accused appellants, to show that the evidence given by PW 7 is not believable. We find that the evidence of this witness remains unshaken in the cross examination. This apart, this witness has not made any attempt to exaggerate the description of the occurrence and candidly deposed that he had fled away from the scene of occurrence immediately after Almas had been assaulted by accused Kurban. 12. Yet another witness who has been examined as eye witness to the alleged occurrence is PW 6 whose evidence is that hearing hue and cry at the place of occurrence he came out of his house and saw accused Kuber, Safi Ali, Abbas and Motleb chasing Almas with arms in their hands and when Almas fell down all the accused persons assaulted him PW 6 also deposed that accused Abbas and Kurban were armed with dao where as accused Motleb and Safi were armed with dagger. PW 6 also deposed that on hearing hue and cry when he came out of his house he

9 9 had also seen PW 1 near the place of occurrence and after killing Almas the accused had left the place of occurrence whereupon he (PW 6) and PW 1 went near Almas and found him dead. Even the evidence of this witness could not be shaken by the defence by cross examination; rather, in his cross examination this witness has asserted that he had seen four accused, that is, the present appellants chasing Almas and assaulting him when he had fell on the ground. Thus the evidence of this PW 6 has remained unshaken. 13. What transpires from the combined reading of the evidences of PWs 1, 2, 5, 6 and 7, who had all been examined as eye witnesses, is that the said deceased accompanied by PW 7 and 2 happened to come near the house of accused Kuber, accused Abbas caught hold of the deceased, Kurban came with a dao and gave a blow with the dao on the neck of Almas and having sustained the blow on his neck when the deceased was trying to run away to save his life, he was chased by all the accused persons, who faced the trial, and gave blows with the weapons which the accused persons had held in their hands, accused Motleb and Safi holding daggers in their hands. T he medical evidence on record sufficiently corroborates and lends support to the evidence given by the eye witnesses inasmuch as the findings of PW 8 (the doctor) shows that the said deceased had sustained deep cut injuries on his neck and nose and four perforating injuries on his abdomen apart from two cut injuries which appeared on his chest and injuries on his wrist and elbow joints etc. The perforating injuries sustained on the abdomen by thet deceased could have been caused by dagger and the injuries on neck could have been caused by a dao. Thus the medical evidence on record supports the ocular evidence adduced by the prosecution.

10 Situated thus, it becomes clear that the said deceased had sustained multiple injuries on various parts of his body including such vital parts, such as, neck and abdomen. We have already pointed out above that the injuries sustained by the said deceased, as described by PW 8 were sufficient to cause death of a person in the normal course of events. The evidence on record clearly show that the deceased tried to save his life by running away from the place of occurrence but debarred, as the accused were chasing the deceased and when the deceased fell on the ground they gave several blows on the person of the deceased and put him to death. 15. What has appeared from the above events of discussion is that all the accused persons including the ones who have faced the trial intended to cause death of the said deceased and in furtherance of their common intention they assaulted the said deceased, chased him and when the deceased fell on the ground they further assaulted the deceased and put him to death. 16. In the circumstances, as described, there can be no escape from the conclusion, and we see no reason to take a view different from what the learned trial court has taken that the accused appellants had in furtherance of their common intention caused the death of Almas Ali and thereby committed offence of murder. The accused appellants are liable to conviction u/s 302 read with 34 IPC. We see, therefore, no reason to interfere with the conviction of the accused appellants. So far as the sentence passed against the accused appellants is concerned, the same does not call for any interference inasmuch as the present one is the case where the accused appellants have been found guilty of an offence

11 11 u/s302 read with 34 IPC and the offence so committed need not warrant death sentence. 18. Because of what has been described and pointed out above, we find no merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed. Send back the Lower Court Records. JUDGE CHIEF JUSTICE Mazumdar/