Crl.A. 81/2005 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY THE HON’BLE MR JUSTICE CR. SARMACRL The appellants are aggrieved by their conviction under Sections 302/201/149 of t he Indian Penal Code (for short, the Code/IPC) and the sentence of imprisonment for life together with a fine of Rs.10,000/- each, in default, rigorous imprison ment for another two years for the offence under Sections 302/149 IPC as well as the sentence of rigorous imprisonment for a period of three years for the offen ce under Sections 201/149 IPC as recorded in the judgment and order dated 15-2-05 passed by the learned Sessions Judge, Morigaon in Sessions Case No.22 of 2001. Both the sentences were ordered to run concurrently. 2. We have heard Mr. A. S. Choudhury, Senior Advocate and Mr. M.H. Ahmed, Advocate for the appellants and Mr. K. A. Majumder, learned Public Prosec utor, Assam, for the state. 3. On an FIR lodged on 15-6-96 by one Md. Hazarat Ali with the Offi cer-in-Charge, Mairabari police station to the effect that in the same evening, the appellant Nos.1,2, 4,5 and two others had hacked and stabbed his younger bro ther Abdul Kashem to death and had further caused severe injuries to Abu Taher a nd Abdul Hakim by assaulting with spears and daos Mairabari PS case No.57 of 96 under Sections 147/148/149/326/302/201 IPC was registered. On the conclusion of the investigation, chargesheet was submitted against all the accused-appellants along with four others. Eventually, charge was framed against the appellants and one Md. Giyasuddin under Sections 302/201/149 IPC to which they pleaded not gu ilty . The prosecution examined fourteen witnesses whereafter the statements of the accused persons, who stood the trial, were recorded under Section 313 CrPC. No evidence was adduced on behalf of the defence. The impugned judgment and orde r followed. During the pendency of the trial, Md. Giyasuddin expired. 4. The learned counsel for the appellants have persuasively argued that as the evidence on record does not establish the ingredients of Section 149 IPC, in absence of the proof of individual roles of the appellants in the alleg ed assaults, their conviction as recorded is wholly unsustainable in law and on facts and is liable to be interfered with. Asserting want of proof of motive of the appellants in committing the alleged offence, the learned counsel have argue d that the evidence of the only eye witness Abdul Hakim, PW 3 is deficient in ma terial particulars and insufficient to establish the complicity of all the accus ed-appellants. The evidence of PW 2 and PW 7 who endeavoured to reproduce the di sclosures made by the deceased Abu Taher implicating the accused-appellants has been dismissed on the ground that their testimony is wholly incompatible with th at of PW 9 rendering their presence at the place of occurrence highly doubtful. Moreover, if the version of the eye witness, PW 3 is accepted having regard to t he injuries sustained by him, he by no means could have been in a state to have noticed the assaults on the deceased person. 5. The learned counsel for the appellants have, however, urged that as admittedly the alleged incident took place late in the evening, in the absen ce of any convincing proof of the identification of the appellants as the assail ants, they cannot be said to be unmistakably involved therein. The omission on t he part of the Investigating officer to record the dying declaration of Abu Tahe r though he was alive for over 48 hours after the incident is fatal for the pro secution, they urged. According to them, the evidence of PW 2and PW 7 about the disclosures made to them of the incident by Abu Taher does not deserve any crede nce they having omitted without any explanation to mention about the same in the ir statement recorded under Section 161 CrPC. While contending that the prosecut ion has miserably failed to prove the charge against the accused-appellants, it has been urged without prejudice to this stance that even if the testimony of PW 3 is accepted on its face value only a stray assault by the appellant No.3 on A bu Taher stands established. In absence of any prior concert or pre-meditation t he assault made by him cannot attract the offence of Section 302/149 IPC and tha t as meanwhile he (appellant No.3) along with other appellants are in imprisonme nt for five years, the sentence, if any, awarded for his individual act ought to be set off against the same. In all, the learned counsel for the appellants arg ued that having regard to the gross infirmities in the prosecution case, the acc used-appellants are at present entitled to be acquitted. To re-inforce their arg uments reliance have been placed on the decisions of the Apex Court in Anil Rai Vs State of Bihar, 2001 CrLJ 3969; Bhima alias Bhima Rao Sida Kamble and others Vs State of Maharashtra, AIR 2002 SC 3086 and Shrishti Narain Jha Vs Bindeshwar Jha and others, (2009) 6 SCC 457. 6. The learned Public Prosecutor while referring to the evidence of PW 2 PW 3, PW 7 and PW 9 has urged that a cumulative reading thereof establish the charge against the accused-appellants beyond all reasonable doubt and ther efore, the impugned judgment and order is valid and does not warrant any interfe rence by this court. 7. A brief survey of the evidence at this stage is called for. PW 1 Md. Billal Hussain is a witness to the inquest of the decea sed Abdul Kashem and he proved the inquest report as Ext.1 and his signature the reon as Ext.1/1. While expressing ignorance about the genesis of the occurrence, this witness referred to another injured named Abu Taher who after the occurren ce received medical treatment in a nearby Civil hospital. PW 2 Md. Abdul Motin deposed that at about 2 am of 16-6-96, the wife o f the deceased Abdul Kashem came to his house and informed him that her son-in-l aw Abu Taher, her husband Abdul Kashem and Abdul Hakim were assaulted in the hou se of appellant No.1. The witness stated that along with Sekender Ali and others he went to the house of the appellant No.1 and in the way on hearing a cry loca ted Abu Taher and he (Abu Taher) on being queried stated that he had been assaul ted by the appellant Nos, 1, 2 and 3 and two others, namely, Giyasuddin and Sams uddin. The witness further stated that they then took Abu Taher to the Mairabari police station en route to Naogaon Civil hospital where he died a day after. Th e witness also stated to have located the dead body of Abdul Kashem at a distanc e of one furlong from the house of the appellant No.1 by the side of a stream. I n cross-examination, this witness stated about the murder of Abdul Kashem as wel l as infliction of injury on Abdul Hakim. He denied the suggestion that he had n ot stated before the police that the wife of the deceased Abdul Kashem had come to his house in the mid-night and had informed about the occurrence and that on receiving the said information he along with others had proceeded to the place o f occurrence and in the way hearing the cry of Abu Taher met him and that the la tter had disclosed to him about the incident and the involvement of the accused appellants. 8. PW 3 Abdul Hakim who h as been presented as the only eye witness by the prosecution, testified that the deceased Abdul Kashem had married the da ughter of the appellant No.1 and as his wife was not being allowed to return by her father, he (deceased) complained about the same to the villagers. The witnes s stated that the appellant No.1 on the date of occurrence asked the deceased Ab dul Kashem to go to his house to bring his wife and accordingly, a meeting was h eld in his (appellant No.1) house in which he (witness), Abu Taher, Suraj Ali an d others assembled. The witness also mentioned about the presence of some other persons. The witness stated that during deliberations, a ’marpit’ took place in course of which the accused-appellant No.3 assaulted Abu Taher with a lance in h is chest. The witness further stated that Rafiq assaulted Abdul Kashem with some weapon and accused-appellant No.1 impaled his back with a lance. At that stage, the witness stated, all the persons started to flee and Abu Taher took shelter in a paddy cultivation having received injuries in his chest. He also stated tha t Abdul Kashem, however, being injured fell in the courtyard of the appellant No .1. 9. PW 4 Khalibur Rahman is a reported witness and was present at t he time of inquest. PW 5 Dr. K. C. Basumatari who performed the post mortem exam ination on the dead body of Abu Taher stated to have found the following injurie s:- Injury No.1. One surgical wound with stitches in the middle of the abdominal wall 17.2 cm in length in vertical plane. Injury No.2. One surgical wound 13.5 cm in length with stitches in the left side of the abdominal wall in transverse plane. This would joined wi th the surgical wound No.1. Injury No.3. One stab wound 2.5 cm. X 0.4 cm in the abdominal ca vity deep elliptical in shape in the right side of the abdominal wall 19 cm abov e the right iliac crest and 6.5 cm lateral to the midplane of the body. The marg ins of the would are sharp and clean, ecchymosis present in the margins of the w ound. He proved the post mortem report as Ext.3 and stated that the ca use of death was due to shock and haemorrhage resulting from the injuries sustai ned. PW 6 Dr. Kalyan Kr. Bora had performed the autopsy on the dead body of Abdul Ka shem. He stated about the following injuries on the dead body :- (1) One punctured wound over fourth left inter costal space in the mid axillary line of size 1 ‰ X … caused by sharp weapon. (2) One incised wound of size ‰ X 1/8 X 1/8 over right elbor. The penis is covered by insects and eaten away. Skin and soft tissues were eate n by maggots. Cranium and spinal cord : Pale and healthy. Scalp, vertebrae, mem brane and spinal cord: Pale and healthy. Walls, ribs and cartilage : Ribs and ca rtilage are intact. Pleura contains dark liquid blood, lacerated injury in right pleura 1 X 1 (3) Right lung collapsed, lacerated injury in lower lobe, size 1 X 1 . (4) Pericardium : Lacerated injury of size ‰ X ‰ on anterior aspect. (5) Heart: Lacerated injury of wall of the right atrium of size 2 X 2 . The witness stated that the injuries were ante mortem and were c aused by sharp weapon. PW 7 Sekender Ali stated that he received the information of the occurr ence at about 2 am on 16-6-96 through the wife of the deceased Abdul Kashem and then went to the house of accused-appellant No.1 and in course of search, found Abu Taher in the midst of the field, groaning. This witness stated that Abu Tahe r on being asked stated that he had accompanied Abdul Kashem to the house of app ellant No.1 and that he (Abdul Kashem) had been killed by the appellants and Giy asuddin and Samsuddin. He denied the suggestion that he was informed by the wife of the deceased Abdul Kashem and that Abu Taher did not state before him that a ppellant No.1, Rafiq and Giyasuddin had assaulted him. PW 8 Abdul Khaleque testified that though he was in the group to search out the injured persons and had met Abu Taher in the middle of a field, on being asked h e (Abu Taher) stated that he could not recognise the assailants. PW 9 Ms Jahura Khatoon, the wife of the deceased Abdul Kashem stated that at ab out 8 pm on the date of the occurrence, the accused-appellants and Giyasuddin ha d visited her house and they asked her husband to bring her second wife from her father’s house. She stated that at about 3 am in the next morning Abdul Hakim ( PW 3) came to her house and informed her that her husband had been killed and Ab u Taher had been injured. She then went to the house of the appellant No.1 and l ater on found her husband dead and Abu Taher injured. She stated that Abu Taher was taken to the Guwahati hospital for treatment where he died after three days. 10. PW 10 Mufiz Ali stated that after the occurrence, he found Abu T aher in a ’nala’. He also stated about the location of Abdul Kashem in a nearby ’nala’. 11. PW 11 Idris Ali, the elder brother of Taher Ali though stated t hat he (Taher) was injured and had to be referred to Nagaon civil hospital for t reatment, however, did not mention about any disclosure made by him (Taher) with regard to the involvement of the accused-appellants. 12. PW 12 Mr. Gopeshwar Das is the police officer who prepared the i nquest report on the dead body of the Abu Taher and proved it as Ext.6. PW 13 Mu zibar Rahman is another police officer who prepared the inquest report on the de ad body of Abdul Kashem as Ext.1. He also proved the sketch map as Ext.8. This w itness, however, with reference to the case diary in course of his cross-examina tion stated that PW 2 did not state before him that on 16-6-96 at about 2-30 am, he had gone to the place of occurrence on being informed by the wife of the dec eased Abdul Kashem and that he met Abu Taher who reported to him about the occur rence. This witness also affirmed with reference to the case diary that PW 7 Sek ender Ali did not state before him that he was informed about the incident by Ms Jahura Khatoon, wife of the deceased Abdul Kashem and that he thereafter went t o the place of occurrence. The Investigating officer deposed that PW 7 had state d before him that he met Abu Taher, however, in an unconscious state. PW 14 H. A li is also a police officer who had submitted the chargesheet on the completion of the investigation. 13. Incriminating evidence against the accused-appellants, on marsha lling the testimony of the prosecution witnesses, appear to have been presented only by PW 2, PW 3 and PW 7. Though PW 3 claims himself to have been injured in the occurrence, the prosecution for some inexplicable reason has not adduced any medical evidence in support thereof. His injuries, therefore, have remained unp roved. He had asserted that the appellant No.1 had plunged a lance/spear in his back. Rafiq had assaulted Abdul Kashem with same weapon and Omar pierced a lance in the chest of Taher. It is, however, not clear from his deposition as to whet her Rafiq mentioned by him is either appellant No.4 or appellant No.5. This witn ess noticeably however has not implicated the other accused-appellants in the as sault. His testimony, therefore, pinpoints assault by the accused-appellant No.3 on Abu Taher with a spear in his chest for which he eventually succumbed to the injuries sustained. The post mortem report relating to Abu Taher and the injuri es mentioned therein appear to reinforce this version. Though the number of inju ries detected on the body of Abu Taher is more than one, this per se does not re nder the involvement of the accused-appellant No.3 unbelievable in the face of s uch clear and unambiguous statement on oath by PW 3. The assault by the appellan t No.3 on Abu Taher with a spear in his chest therefore stands proved. This howe ver does not permit a finding that the injury caused by the said isolated assaul t by the accused-appellant No.3 had assuredly caused the death of Abu Taher. In absence of identification of either the appellant No.4 or appellant No.5 as the assailant of Abdul Kashem, in our estimate, they are entitled to a benefit of do ubt. For want of any medical evidence to unmistakably prove the injuries sustain ed by PW 3, we consider it unsafe to rely on his testimony to implicate the accu sed-appellant No.1 in the assault. 14. We are left unconvinced by the plea of lack of identification of the accused-appellants. It is noticeable that an assembly had been convened on the consensus of the appellants in which others were also present. PW 3 in his c ross-examination revealed that at the time when meeting was in progress, none of the accused-appellants was equipped with any weapon. The origin of the brawl al so has remained in obscurity. Having regard to the purpose for which the partie s had assembled in the presence of independent persons of the locality and in ab sence of any evidence of any prior concert or pre-meditation of the accused-appe llants suggesting their common object, we are of the view that Section 149 IPC i s not attracted on the facts of the instant case. Moreover, the evidence of the only eye witness (PW 3) is grossly insufficient either to suggest such common ob ject or to demonstrate the appellants individual acts of assault leading to the death of Abdul Kashem and Abu Taher except that of appellant No.3. As stated abo ve, the injuries of PW 3 as well have remained unproved. 15. PW2 and PW 7 have, in view of their significant omission to ment ion about the information of the occurrence received from the wife of the deceas ed Abdul Kashem, their visit to the place of occurrence and their interaction wi th Abu Taher render them untrustworthy. They having omitted to mention such vita l facts to the Investigating officer at the first instance, in our estimate, it would be unsafe to act on their testimony in support of the charge. More so, whe n the Investigating officer did not record any dying declaration of Abu Taher, t hough he had remained under medical treatment for about 2/3 days after the incid ent. 16. In view of the above considerations, we are of the opinion that the charge under Sections 302/149/201 IPC against the accused-appellants has rem ained unproved. As alluded hereinabove, the factum of assault by accused-appella nt No.3 on Abu Taher is established. Considering the circumstances on which the meeting had been convened and was in progress, it is not unlikely that in course of the exchanges, the accused-appellant No.3 on the spur of the moment had assa ulted Abu Taher. The mention of a fight in course of the meeting is an indicator to that effect. In absence of any evidence of prior concert or pre-meditation a mongst the accused-appellants, he (appellant No.3), thus has to suffer the conse quences of his isolated act. To reiterate it is not clear that Abu Taher had di ed of the injury sustained from the only assault inflicted by the appellant No.3 . In that view of the matter, we are of the considered opinion that he can at be st be convicted for the offence of grievous hurt under Section 326 IPC by sharp cutting weapon. Ordered accordingly. 17. In conclusion, we therefore hold that charge against the accused -appellants under Sections 302/149/201 IPC fails. The accused-appellant No.3 is convicted under Section 326 IPC and sentenced to suffer rigorous imprisonment fo r five years and fine of Rs.1,000/-, in default, to undergo RI for another two m onths. The sentence undergone by him as on date would stand adjusted with the s entence so awarded. The accused-appellant Nos.1,2,4 and 5 stand acquitted. The a ppeal thus is partly allowed.