Crl.A. 16/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE C.R. SARMA Amitava Roy,J 01. The appellants convicted and sentenced by the judgment and order dated 14.12.2010 passed by the learned Addl. Sessions Judge,(FTC) Court No.2, K amrup, Guwahati, Assam, in Sessions Case No.270(K) 2006 seek redress. By the dec ision impugned they have been convicted under Sections 302/34 of the Indian Pena l Code (for short as referred to as ’IPC’.) and sentenced to suffer Rigorous Imp risonment for life and to pay a fine of Rs. 1000/- (Rupees one thousand) each in default to undergo Rigorous Imprisonment for further one month. 02. We have heard Mr. B.M. Choudhury and Mr.A. Choudhury, Advocates for the appellant in Criminal Appeal No. 16 of 2011 and Mr. F.K.R. Ahamed, Advoc ate for the appellants in Criminal Appeal No. 11 of 2011. Mr. K.A. Majumder, lea rned Public Prosecutor of Assam appeared for the State. 03. The genesis of the prosecution case lies in the FIR lodged by on e Latifa Bibi on 24.3.2004 with the Officer-in-Charge of Hazo P.S. alleging that on the previous day i.e. on 23.3.2004 at about 5 p.m. there was a quarrel betwe en her sister-in-law Daria Begam and the persons named therein in connection wit h concealment of three ducks of her following which she was assaulted as well. T he informant alleged that when she wanted to intervene the persons named in the FIR also wanted to assault her and threatened to eliminate her family members. T he FIR further disclosed that at about 7 p.m. the same evening while the informa nt’s husband Faijur Rahaman and her brother-in-law Nazimuddin were returning fro m the market, they were attacked by the persons named near Doloitola Chowk with Dao, lathi, Hulabari etc. as a result of which, the two victims succumbed to the injuries sustained and died at the spot. The FIR named the accused-appellants a s well as Monser Ali, Mrs. Roja Bibi and Miss Marina Begam to be the assailants. 04. Hazo Police Station case No. 40 of 2004 was registered on this i nformation under Sections 147/148/149/304 IPC. On the conclusion of the investig ation charge sheet was submitted against the accused-appellants only under the a bove provisions of the IPC. The case being exclusively triable by the Court of S essions, it was committed accordingly and charge was framed under Section 302/34 of IPC against the accused-appellants, which the accused-appellants denied. 05. The prosecution examined thirteen witnesses including the doctor s who had performed the post mortem examination on the dead bodies as well as th e Investigating Officer. The accused-appellants were examined under Section 313 Cr.P.C, in course of which, they maintained the same stand and claimed to be inn ocent. They also examined two witnesses namely, Md.Lal Man (DW.1) and Md.Monser Ali (DW.2). 06. The learned trial court on a consideration of the evidence on re cord both oral and documentary and after hearing the learned counsel for the par ties convicted and sentenced the appellants as above. 07. Before adverting to the rival submissions, it would be appropria te to cause a survey of the salient features of the evidence adduced at the tria l. 08. The accusations made against the appellants in the FIR have alre ady been briefly noted. PW.1 Latifa Bibi, the informant, is the wife of the deceased, Faizur Rahman and the sister-in-law of the other namely, Nazimuddin. On oath, she identified the a ccused-appellants on the dock and stated that their houses were in the neighborh ood of hers. She stated that the place of occurrence was on village road and abo ut 1 furlong away from her house. She deposed that the time of the occurrence wa s about 6-30 in the evening. According to her, prior to the incident, the accuse d-appellants had stealthily taken away three ducks belonging to her sister-in-la w Dariya Begam and had concealed those by butchering them. She stated that as Da riya Begam went in search of the said ducks and raised objection on coming to le arn about their fate, the mother of the accused-appellants Ratul and Sariful as well as their sister assaulted her and turned her out from their premises. Alter cations followed between the womenfolk of both the families thereafter. Accordin g to the witness, at that point of time, the deceased persons were not at home a nd were off to the market. She stated that while they were returning home in the same evening, they were intercepted by the accused-appellants near the house of one Mannan and heated altercations followed. She claimed to have heard her husb and offering to resolve the controversy and immediately heard him cry that he wa s being killed. The witness on hearing this rushed out of the house and reached the place of occurrence to see her husband being assaulted by the accused-appell ants with the spear, lathi, hullabari etc. She further stated that the appellant s Tomiz Ali and Bhogi hurled a Dao towards her brother-in-law Nizamuddin and as it hit on rear of his head, he fell down and then the accused-appellant Intaz Al i slit his throat. The witness testified that as she tried to resist the appella nts, Sariful shot a hullabari towards her which however she could avoid. The wit ness then out of fear hid herself behind the paddy stack. She claimed that at th at time she was accompanied by the wife of the deceased Nazim Uddin, her two son s and her nephew. According to her, after the incident, the appellants left the place of occurrence with the hullabari and the dao. The Gaon Bura of the village and others thereafter arrived at the place of occurrence and informed the polic e. According to the witness the police visited the place of occurrence in the ve ry same night and lifted the dead bodies. She stated to have lodged the FIR on t he next date. 09. In the cross-examination this witness stated in particular that her husband had gone to the market on the date of the incident in a bicycle. She admitted to have omitted to mention about the killing of the ducks in the FIR. She admitted to have lost her sense at the place of occurrence. She reiterated t hat the house of Mannan was very near the place of occurrence and that a little away was that of Barul. She further mentioned about the presence of electric lig ht in a shop near the place of occurrence. The evidence of the PW.2 Rajat Ali, PW.3 Md.Firoj Ali, PW.5 Sajnur Ali and PW.6 Alkesh Ali is not essential to be dilated upon vis-à-vis the actual occurrence a s they have presented themselves as the witness of the seizure of the weapons of assault and the inquest done on the dead bodies. Whereas the evidence of the PW .8 Dariya Begam is confined to the incident over the three ducks, the testimony of PW.7 Karpo Bibi clearly demonstrate that she is not an eye witness to the inc ident though she had visited the place of occurrence thereafter. In her statemen t at the trial this witness, however, mentioned about the presence of the appell ants Thakur Ali, Intaz Ali and Sriful, Roja Bibi and Marina at the place of occu rrence immediately after the incident. In cross-examination this witness also ad mitted of not having seen the actual assault on the deceased. 10. The evidence of the PW.12 Juwel Ali and PW.13 Faruk Ali sons of the deceased Faizul Rahaman is substantially in the same lines as that of their mother. According to them at the time of the incident they were present in the p ump house near the place of occurrence from where they could hear her shouts tha t her husband was being killed. They then rushed to the place of occurrence and found the appellants assaulting their father and their uncle Nizamuddin. Accordi ng to them they were killed by being assaulted by sharp as well as blunt weapons . In specific terms they deposed that their father and uncle were chopped and ba ttered to death. In cross-examination PW.12 admitted that at the time of occurre nce he was a student of Class V. He stated that the place of occurrence was abou t 2 furlong from their house and that in the said village there were about 150 f amilies. This witness in particular stated that the night was a moonlit night. As observed hereinabove, the evidence of the PW.13 is in identical lines. 11. PW.9 Dr. Kanak Chandra Das and PW.11 Dr. B.C.Roymedhi had conduc ted the post mortem examination of the dead bodies of Md.Faizur Rahaman and Nazi muddin respectively. PW.9 in his deposition referred to the following injuries : - 1. Lacerated injuries in size 3 cm x 2 cm x muscle deep present on front of rig ht leg middle part. 2. Contusion of size 3 cm x 2 cm present on left forearm. 3. Contusion present on skull near the vault of the skull. Size 15 cm x 10 cm un derneath both parietal bones and fractured. Fracture was depressed. Comminuted f racture with multiple fragment and one linear fractures line extent up to the ba se of the skull through left temporal bone. Extra-dural hematoma present over th e left temporal lobe of the brain. Defused sub-dural haemorrhage present all ove r the brain. Whole brain congested. 12. He proved the examination of the report Ext.3 and claimed that t he injury was homicidal in nature caused by blunt weapon and that it was due to coma as a result of head injury. 13. PW.11 Dr.B.C.Roymedhi at the trial referred to the following inj uries found on the dead body of Nizamuddin in course of post mortem examination. Lacerated injury of scalp of size 6 cm x 3 cm x brain deep prese nt over the vault of the skull underneath the injury fracture of bones of skull found. Brain found lacerated. Brain matter comes out through the wound. Blood cl ot found adherent in the wound. 2. Depressed comminuted fracture of size 8 cm x 6 cm found over the vault o f the skull. 3. Diffused contusion of scalp present over the both parietal region. The Membrane found lacerated. Extradural hematoma of size 10 cm x 8 cm x 1 cm found below the fracture of skull. Sub-dural hemorrhage present on both si des of cerebral hemisphere. He also opined that death was due to coma resulting from head injury. 14. PW.10 Sri Khagen Chandra Das is the Investigating Officer and he deposed about the steps taken by him in course of the investigation. He proved inter alia the seizure of the weapons of assault by the seizure list Ext.2. He a lso proved the inquest report Ext.1, FIR Ext.6 and sketch map-Ext.5. He admitted of having received an information about the incident from the Gaonbora of Doloi tola village at about 8-30 p.m on 23.03.2004 and stated that in response thereto he visited the place of occurrence, performed the inquest on the dead bodies, p repared the sketch map and seized the weapons of assault, whereafter, he submitt ed charge sheet, Ext.6 under Sections 147/148/149/302 IPC against the accused-ap pellants. The evidence of DW 1, Lalmon and DW 2, Md. Meser Ali is to the effect that it wa s dark at the place of occurrence and that the wife of the deceased had arrived thereat after the incident. 15. Mr. Choudhury has argued that so called eye witnesses PWs.1,12 a nd 13 not having been able to attribute specific acts of assault on the deceased with the identity of the assailants, the learned trial court erred in convictin g and sentencing the appellants. While contending that the examination of the PW s. 12 and 13 who had not been cited as the witness in the charge sheet has preju diced the defence of the appellants in absence of their statements under Section 161 Cr.P.C, the learned counsel has urged that the testimony of the PW.7 projec ted by the prosecution to be an eye witnesses being wholly incompatible with tha t of PWs.1,12 and 13, the learned Court below ought to have acquitted the accuse d-appellants. Referring to the evidence of PW.1 in particular that the accused-a ppellant, Intaz Ali had slit the throat of Nizam Uddin, Mr. Choudhury has urged that in absence of any incised or sharp wound of any of the dead bodies as discl osed by the post mortem reports, the prosecution case is untrustworthy as a whol e and ought to have been rejected by the learned trial court. The so called ocul ar and medical evidence being mutilative of each other, the very foundation of t he charge against the accused-appellants has been rendered non est and therefore , the impugned judgment and order is liable to be interfered with, he pleaded. M r. Choudhury has maintained that having regard to the distance between the house of the informant and the place of occurrence it was impossible for her to hear the deliberations thereat (place of occurrence) and the clarion calls of her hus band there from and that as the evidence of the PW.1, PW.12 and PW.13 stand thor oughly discredited by the medical evidence, the conviction and sentence of the a ppellants unless set aside would result in travesty of justice. He also question ed the veracity of the prosecution case on the ground of absence of independent witnesses though the area was sufficiently populated with such inhabitants. The learned counsel for the appellants in Criminal Appeal No. 11 of 2011 has fully a dopted these arguments. 16. The learned Public Prosecutor in reply has argued that a conjoi nt reading of the evidence of the PW.1, PW.12 and PW.13 would reveal that the ch arge against the appellants has been proved beyond doubt. The testimony of thes e witnesses being amply supported by the other materials on record namely, the i nquest, seizure and the statements of other witnesses, no interference with the impugned judgment and order is warranted, he maintained. According to Mr. Majumd ar, mere absence of any incised wound on the dead bodies does not disprove the c ase of the prosecution in the face of otherwise overwhelming and reliable eviden ce of the eye witnesses namely, PW.1 PW.12 and PW.13. 17. The evidence on record and the rival arguments have received our anxious consideration. To start with, the First Information Report categoricall y named the appellants as the assailants. The evidence of PW 1, PW 12 and PW 13, if believed, the complicity of the accused-appellants in the acts of assaults s tands proved. These witnesses not only have corroborated each other with regard to the distance of the place of occurrence from their house, they have in catego rical terms stated to have seen by themselves the assaults made by the accused-a ppellants on the deceased. The evidence of these witnesses also suggest that not only it was a moonlight night, but also there was a source of light from a shop located near the place of occurrence. These witnesses have involved the accused -appellants in overt acts of assault with different weapons in a body collective ly. The incident over the ducks of Ms. Daria Begum, the sister-in-law of the inf ormant and involving the women folk of the families of the accused-appellants’ p receding the murderous assaults is of considerable significance. According to th e testimony of the PW 1, the deliberations between the deceased and the accused- appellants before the actual occurrence had an animated reference to this confro ntation over the duck episode. That the husband of the informant as well as her brother-in-law had met homicida l death is a fact proved beyond all reasonable doubt. Though, the post mortem re ports, as such, do not disclose any cut injury on the deceased, the same, per se , is not extinctive of the prosecution case. According to the medical opinion, d eath occurred due to head injury disclosing fracture of the skull. It is not unl ikely that PW 1 in a dazed state might have had an impression in the melee that the accused-appellant Md. Imtaz Ali had slit the throat of Nazimuddin with a dao . The prosecution has proved as well, the seizure of a dao, a hullabari and two bamboo lathis from the place of occurrence on the very date of the incident. 18. The evidence of PW 1, 12 & 13 has remained unshaken in cross-exa mination. Though no specific act of assault has been attributed by these witness es to any of the accused-appellants, the very fact that they in a body had attac ked the deceased with lethal weapons resulting in fatal injuries on a vital port ion of their body, namely, head is sufficient in the facts and circumstances of the case to prove the charge against them. The plea of want of intention to kill , having regard to the weapons wielded by the accused-appellants lacks persuasio n. Omission on the part of the prosecution to examine the independent witnesses also ipso facto does not entitle the accused-appellants to the benefit of doubt in the face of the well knit and coherent testimony of PW 1, PW 12 and PW 13 abo ut their incriminating involvement in the assaults resulting in fatal injuries t o which the injured eventually succumbed. The evidence of PW 1, PW 12 and PW 13 when judged as a whole, the contention of inconsistency between ocular and medic al evidence also does not appeal to this Court. The cavil of prejudice based on examination of PW 12 & 13 at the trial though no t in course of the investigation is of no avail. 19. On a totality of the circumstances narrated hereinabove, we are of the unhesitant opinion that the accused-appellants had shared a common intent ion of attacking the deceased in a body with lethal weapons and to effect assaul ts on them therewith for eliminating them. PW 1, PW 12 and PW 13 in our estimate has proved the charge against the accused-appellant under section 302/34 of the IPC. We have perused the judgment and order and are in full agreement with the reasonings and the conclusions recorded therein. The appeals are thus, without merit and are dismissed.