Crl.A. 174/2002 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE SMT. JUSTICE A. HAZARIKA. JUDGMENT & ORDER Ranjan Gogoi J. 1. The appeal is directed against the judgment and order dated 8.8.2002 pas sed by the learned Sessions Judge, Morigaon, in Sessions Case No.30 of 1999. By the aforesaid order the learned Sessions Judge has acquitted the respondents in the appeal of the charge under Section 302, IPC. Aggrieved by the said acquitta l the State is in appeal before this Court. 2. The case of the prosecution in short is that a FIR was lodged in the Moi rabari Police Station under Morigaon District by one Md. Nazrul Islam (PW 3) sta ting that at about 7.00 A.M. of 17.3.97 while the father of the informant, one K eramat Ali Maral, was having tea in the tea stall of Sri Dilip Modak at Moirabar i Bazar, at that time accused Nos.1 to 6 named in the FIR entered the tea stall. Thereafter, the accused Nos.2 and 3 fired at Keramat Ali with a pistol while th e other accused injured the aforesaid Keramat Ali by stabbing and hacking him wi th daggers and sword etc. In the FIR filed it is further stated that on account of the assault committed and the injuries sustained Keramat Ali died on the spot . It is further stated that the first informant along with five witnesses named in the FIR were present at the spot and when they had tried to offer resistance they were threatened with pistols as a consequence of which they had to flee awa y from the place of occurrence. In the FIR filed it was specifically alleged tha t the incident took place at the instigation of accused Nos.7, 8 and 9. 3. On the basis of the FIR filed Moirabari P.S. Case No.21/1997 was registe red and investigated. On completion of investigation the accused persons were ch arge-sheeted under Sections 147/148/149/302/210/448, IPC. The offences alleged being exclusively triable by the Court of Sessions the case was committed for tr ial to the court of the learned Sessions Judge at Morigaon. In the Court of Sess ions charge was framed against all the accused under Sections 147/148/149/302/10 9, IPC to which they pleaded not guilty. In the course of the trial accused Abdu l Hai died whereas the accused Rahul Amin was declared absconder. 4. In support of its case the prosecution examined as many as 9 witnesses w hereas the defence examined one witness. At the conclusion of the trial the lear ned Sessions Judge by order dated 8.8.2002 convicted the accused Mofizuddin Isla m and Abdul Rahim Faruqi under Section 302, IPC and sentenced them to undergo ri gorous imprisonment for life and to pay a fine of Rs.1000/- each in default R.I. for another six months. The remaining five accused i.e. (1) Abdul Jalil, (2) Ab dul Rashid, (3) Giasuddin Muktar, (4) Samsul Haque and (5) Imdadul Islam were ac quitted by the learned Sessions Judge on benefit of doubt. Accused Rahul Amin wa s declared an absconder. It is the correctness of the said view that has to be d etermined by us in the present appeal. 5. Before proceeding any further it will be necessary for the Court to noti ce the core of the evidence adduced in support of the prosecution case as well a s the evidence adduced by the sole defence witness. 6. PW 1, Taher Ali, in his deposition had stated that on the day of occurre nce at about 6/6.30 A.M. he had gone to Moirabari Bazar where he met Siraj Ali ( DW 1) near Kalia Hotel. According to this witness, both of them had entered into the hotel for taking tea. On entering the hotel they found deceased Keramat Ali sitting inside the hotel. PW 1 had deposed that while they were sipping tea the y found deceased Keramat rising to his feet by saying hosiar . Accused Abdul Ha i (since deceased) came running towards Keramat with a dagger in his hand. Whe n this witness tried to stop Abdul Hai, accused Rahul Amin threatened him by sho wing a pistol. According to this witness, he thereafter ran away from the hotel out of fear and on coming back along with others he found Keramat Ali lying with bleeding injuries on different parts of his body. This witness had categoricall y stated that he saw stab injuries on the legs, face and chest of the deceased K eramat Ali. From the cross-examination of PW 1 it has come out that the son of t he deceased, i.e. Md. Nazrul Islam (PW 3) was present at that time in the hotel along with other members of Keramat’s family besides some other persons. 7. PW 2, Imran Hussain, is a seizure witness. 8. PW 3, Nazrul Islam is the son of the deceased. According to him, at abou t 7.00 A.M. on the date of occurrence he was present in front of Kalia Hotel at Moirabari Bazar. At about that time his father, deceased Keramat entered the hot el for taking tea. PW 3 had deposed that at that time his uncle Sorhab Ali (PW 4 ) was also in front of the hotel. After about 10 minutes Mozammil Hussain (PW 6) came to the place. At that time all the accused came to the hotel. PW 3 had dep osed that the accused Giasuddin, Jalil Master (Abdul Jalil) and Samsul Haque had ordered the others to catch hold of the deceased whereupon the accused Abdul Ha i, Abdul Rashid, Rahul Amin, Mufiz Uddin and Abdul Rahim Faruqi went inside the hotel. Thereafter accused Abdul Rashid shot at Keramat with a pistol whereas acc used Abdul Hai hit him in the chest with a sword. PW 3 had further deposed that Rahul Amin, Mufizuddin and Abdul Rahim Faruqi had struck the deceased with dagge rs and that he along with others had run away when accused Imdadul came charging at them. PW 3 had further deposed that after about half an hour when he came ba ck along with others he found his father dead. Thereafter he lodged the ejahar. In cross-examination this witness had admitted that he was an accused in the case involving the murder of accused Abdul Hai and that his father Keramat had undergone life imprisonment in another murder case. This witness had admitte d that PW 4 Sorhab Ali and PW 6 Mujammil Hussain were his relatives. In cross-ex amination he had further stated that his father had been shot with a pistol but that he did not know whether the pistol shot had hit him or not. 9. PW 4 Sorhab Ali in his deposition had stated that on the day of occurren ce at about 6.30 or 7.00 A.M. he was in front of Kalia hotel. After a little whi le deceased Keramat and Nazrul Islam (PW 3) had arrived there. This witness had deposed that Keramat was inside the hotel while Nazrul had come near him. Shortl y thereafter Muzammil (PW 6) also came. Thereafter all the accused persons had c ome to the hotel. While the accused Gias Uddin, Jalil Master (Abdul Jalil) and S amsul Master (Samsul Haque) had asked the others to get hold of deceased Keramat , the other accused went inside the hotel. PW 4 had categorically deposed that a ccused Abdul Rashid had shot at Keramat Ali with a pistol whereas accused Abdul Hai (since deceased) had hit him with a sword. This witness had further deposed that the accused Rahul Amin, Imdadul, Mufijuddin and Abdul Rahim Faruqi had assa ulted the deceased with daggers. PW 4 had further deposed that when they were ab out to go to the aid of the deceased, Keramat, Jalil Master (Abdul Jalil), Samsu l Master (Samsul Haque) and Gias Uddin had asked the other accused to catch hold of them also. At this accused Imdadul came charging towards them. Consequently, they ran away. Subsequently, along with others this witness came to the place o f occurrence and found Keramat dead. 10. PW 5, Dr. Mobidur Rahman, who held the post mortem examination had found the following injuries on the deceased. 1. Sharp cutting injury starting from angle of the mouth to the level of th e middle of the neck of 5 length. The depth is whole thickness of the cheek. Bl ood clot present on the wound. 2. Sharp cutting injury at the level of the 2nd rib (left side) at the nipp le line 1‰ length and skin thickness which directed laterally. Clotted blood w ith serosenguious present. 3. Sharp cutting injury on the left side at the nipple level starting from the left nipple to the right side 3 in length and 5 depth which penetrated the pleurae, pericardium and heart injuring 4th and 5th ribs. 4. Sharp cutting wound at the level of right lower rib which penetrated the pleural cavity and the liver. 5. Sharp cutting injury at the right leg which cut the skin and the tibia a t the mid level size 3 X 2 . There was clotted blood present. 6. Oblique sharp cutting injury at the right gluteal region which is 8 in length and 3 depth. There was blood clot at the injury. The direction of the wo und was lateral to the medial side. 7. There was scattered sharp cutting injury on the chest wall, abdominal wa ll, right palm and right index finger. The injuries are antemortem in nature. The death, in the opinion of the Doctor, PW 5, was due to the haemorrhage and sh ock as a result of multiple injuries caused by sharp pointed object on his perso n. In cross-examination PW 5 had deposed that none of the injuries is gun shot inj ury. Injury No.6 may be caused by heavy knife. All the injuries will lead to pro fuse bleeding. 11. PW 6, Mujammil Hussain in his deposition had stated that at about 6.30 A .M. on the day of occurrence he had gone to Moirabari Bazar and in the bazaar wh en he was taking tea with Nazrul Islam (PW 3) and Sorhab Ali (PW 4) in Dilip Mak tar’s tea stall all the accused had come to the tea stall from the eastern side. The accused Gias Uddin, Abdul Jalil and Samsul Haque had asked the other accuse d to kill Keramat. At this the other accused persons went inside the hotel. PW 6 had deposed that he heard the sound of gun shot inside the hotel and had seen a pistol in the hands of Abdul Rashid. The other accused were armed with daggers and swords. This witness had further deposed that when they were about to enter the hotel accused Imdadul threatened them with a pistol. Consequently, they ran away and after about half an hour when they came to the spot they found the dead body of Keramat lying in the hotel. 12. PW 7, Somnath Bora, Sub-Inspector of Police, had conducted the main part of the investigation of the case. In his deposition PW 7 had stated that at the place of occurrence he had found Muzammil Hussain (PW 6), Nazrul Islam (PW 3) a nd Sorhab Ali (PW 4) and further that they had arrived at the spot after the inq uest of the dead body was over. In his deposition PW 7 had also stated that PW 3 Nazrul Islam had not stated before him about the details of the assault committ ed by each of the accused though he had stated that all of them had participated in the assault on the deceased, Keramat. Similarly, PW 7 had testified with reg ard to the absence of any statement of PW 4 Sorhab Ali and PW 6 Mujammil Hussain with regard to the specific details of the assault committed by each of the acc used on the deceased. 13. PW 8, Robindra Nath Bezbaruah, is the Officer-in-charge of Moirabari Pol ice Station, who had carried out a part of the investigation. 14. PW 9, Sri Thaneswar Sharma, is an Inspector of the CID who had also inve stigated the case and had examined the same persons who were earlier examined by PW 7, Somnath Bora. This witness in cross-examination had admitted that the sta tement of the persons examined by PWs 7 and 8 in course of the investigation und ertaken by them were, once again, recorded by him and no further witness was exa mined. 15. DW 1, Siraj Ali, who has been named in the FIR as one of the eye-witness es had stated in his deposition that on the date of occurrence at about 7.00 A.M . he was having tea in the Kalia hotel along with Taher Ali (PW 1). According to this witness, deceased Keramat was also having tea at that time. DW 1 had depos ed that accused Abdul Hai (since deceased) and two other unknown persons came to the hotel and Abdul Hai had dealt several blows in the abdomen of deceased Kera mat with a sword. In his deposition he had stated that out of fear he came out f rom the hotel and at that time he did not see any other accused persons; neither did he see any of the member of the deceased Keramat’s family. This witness had deposed with regard to rivalry over property between the deceased Keramat and t he accused Abdul Jalil and Mufizuddin. In cross-examination this witness had cat egorically stated that at the time of the incident there were four other custome rs in the hotel and that he did not hear any gun shot. 16. The learned Sessions Judge after a threadbare consideration of the evide nce adduced by the parties, the core of which has been noticed above, came to th e conclusion that the said evidence conclusively pointed to the guilt of accused Abdul Hai who, however, had died during the pendency of the trial. Insofar as t he other accused are concerned, the learned trial Judge was of the view that the evidence tendered by PW 3 should be accepted only after a close scrutiny as he is the son of the deceased and also an accused in the case involving the killing of accused Abdul Hai. For the same reason i.e. relationship with the deceased a s also the fact that his son was an accused in the same case, the learned trial Court did not readily accept the evidence tendered by PW 4, Sorhab Ali. Similarl y, the learned Sessions Judge recorded the finding that PW 6, Mujammil Hussain, being related to the deceased, his evidence should be carefully scrutinized. Suc h scrutiny, according to the learned Sessions Judge, revealed that PW 6 had not stated before the police that the accused Giasuddin, Samsul Haque and Abdul Jali l had instigated the other accused. Further, PW 6 had stated that all the accuse d were armed which statement was not supported by the evidence of PW 3 and 4. Th at apart, the learned Sessions Judge also took note of the fact that the evidenc e of PW 5, Dr. Mubidur Rahman, though had revealed that a number of injuries cau sed by sharp pointed weapon was found on the body of the deceased, PW 5 had clea rly stated that there was no gun shot injury on the deceased. The fact that all the eye-witnesses had reported the use of a gun shot and the said firearm was no t seized in the course of the investigation were considered to be other relevant circumstances which should be relied upon in determining the culpability of the accused. On the aforesaid basis the learned Sessions Judge had thought it prope r to hold that apart from accused Abdul Hai who was dead, the prosecution had su cceeded in proving the involvement of accused Mofizuddin Islam and Abdul Rahim F aruqi in the crime. Accordingly, the aforesaid two persons were convicted wherea s the remaining five accused, namely, (1) Abdul Jalil, (2) Abdul Rashid, (3) Gia suddin Muktar, (4) Samsul Haque and (5) Imdadul Islam i.e. the respondents in th e appeal were acquitted on the benefit of doubt. The other remaining accused i.e . respondent Rahul Amin was already declared an absconder. 17. The acceptability of the evidence tendered by PWs 3, 4 and 6 who are rel ated to the deceased is the first issue that will require consideration of the C ourt. There is no law that the evidence of a relative of a deceased person canno t be acted upon by the Court in determining the culpability of the accused. Howe ver, as a matter of prudence evidence of such witness are scrutinized by the Cou rts with extra care and caution to exclude interested and tainted evidence from being relied upon. The availability of disinterested witnesses and non-examinati on of such disinterested witness by the prosecution without there being any expl anation, is one circumstance against relying on the evidence tendered by relativ es of the deceased. The inherent credibility or intrinsic worth of the evidence tendered by the relatives of the deceased; the consistency of the statement made by them if there are more than one such witness and the inherent contradictions , if any, between the evidence tendered by such witnesses are other aspects that must receive the Courts consideration before the Court proceeds to rely on the evidence of such witnesses. 18. In the present case though the evidence of PW 3 as well as DW 1 is capab le of suggesting that other persons, not related to the family of the deceased, were at the place of occurrence and the prosecution had offered no explanation f or not examining such witnesses, the said lacuna in the prosecution case, by its elf, cannot be understood to be fatal. The other tests laid down above, which ar e by no means exhaustive, will have to be applied and the cumulative result of a ll such tests will have to be considered by the Court before any decision to act or not to act on the evidence tendered by the PWs 3, 4 and 6 is finally arrived at by the Court. 19. In the FIR filed by PW 3 on the very day of the occurrence the involveme nt of all the accused have been clearly stated. The said version unfolded by the witnesses in the trial therefore found manifestation in the earliest version of the case. The cross-examination of PW 1 clearly reveals that the son of the dec eased Nazrul Islam (PW 3) and other members of the deceased’s family were presen t at the place of occurrence when the incident took place. In this regard it wou ld be significant to note that PW 1 had not fully supported the prosecution vers ion. The presence of PWs 3, 4 and 6 at the place of occurrence when the incident took place, therefore, can be accepted. The evidence of PW 7 (I.O.) that PWs 3 , 4 and 6 had come to the place of occurrence after the inquest over the dead bo dy was completed is capable of being understood on the basis of the evidence of the said witnesses who had clearly deposed that on being threatened by some of t he accused they had left the place of occurrence only to return later along with other persons. A reading of the evidence of PWs 3, 4 and 6 reveals a fair amoun t of consistency and uniformity showing the involvement of all the accused inclu ding the present respondents. The instigation by the accused Giasuddin, Samsul H aque and Abdul Jalil; the firing by accused Abdul Rashid; the assault by the acc used Rahul Amin, Imdadul, Mufijuddin and Abdul Rahim Faruqi, the threat given to PWs 3, 4 and 6 by accused Imdadul stands fully established. The absence of any gun shot injury on the body of the deceased is capable of being understood by th e evidence of PW 3 who clearly stated that though a gun was fired at the decease d he did not know whether the shot had hit the deceased or not. In the above cir cumstances, the Court is of the view that it would be a travesty of justice to r eject the evidence of as many as three eye-witnesses merely on the ground that t he said witnesses were related to the deceased. The evidence of the aforesaid th ree eye-witnesses indicate the clear involvement of the present respondents in t he incident leading to the death of Keramat Ali though on the evidence on record the precise role of any of the accused-respondents in inflicting the fatal inju ry/injuries is not very clear. The question, therefore, is whether the accused-r espondents can still be held liable for commission of the offence under Section 302, IPC. 20. If the evidence adduced by the prosecution witnesses that all the accuse d had come to the place of occurrence in one group and three of them i.e. Giasud din, Samsul Haque and Abdul Jalil had asked the other accused to catch hold of t he deceased Keramat whereafter the other accused had entered the hotel and an as sault took place leading to the death of Keramat, which evidence the Court is in clined to believe, there can be hardly any manner of doubt that the common inten tion of the accused to cause the death of Keramat stands established. However, i n the charge framed against the accused they were not charged for commission of the offence under Section 302 read with Section 34 of the I.P.C. 21. In State of Orissa vs. Arjun Das Agarwal and another, reported in AIR 19 99 SC 3229, it has been held by the Apex Court that Section 34 does not create a distinct offence and it is the participation of the accused that the intention of committing crime is established and Section 34 IPC is attracted. To rope in a person with the aid of Section 34 IPC, prosecution has to prove that the crim inal act was done by actual participation of more than one person and that the s aid act was done in furtherance of common intention of all engaged at a prior co ncert. 22. We are conscious of the fact that in the present case the Court has been called upon to decide the culpability of 5 (five) of the accused Respondents fo r the death of one single person, in addition to the two other accused who have already been found to be guilty. However, on due consideration of the evidence a nd materials on record we are left with no option but to take the view that the judgment and order of acquittal of the accused/respondents passed by the learned Sessions Judge suffers from fundamental errors which would need correction at t he hands of this Court. We, therefore, reverse the judgment under appeal insofar as the accused/respondents are concerned and convict each of the accused/respon dents for commission of the offence under Section 302 read with Section 34, IPC. Each of the accused-respondents is sentenced to undergo R.I. for life and to p ay a fine of Rs.2000/- each, in default, to suffer R.I. for six months more. The accused/respondents (1) Abdul Jalil, (2) Abdul Rashid, (3) Giasuddin Muktar, (4 ) Samsul Haque and (5) Imdadul Islam be taken into custody forthwith. 23. In the result the appeal is allowed. Office to transmit the L.C.R. fort hwith.