Crl.A. 173/2006 BEFORE HON’BLE THE CHIEF JUSTICE MR.MADAN B. LOKUR THE HON’BLE MR. JUSTICE A.K. GOSWAMI (Madan B. Lokur, CJ) The appellants are aggrieved by the judgment and sentence dated 22.6.200 6 delivered by the Additional Sessions Judge (Ad-hoc), Hojai, Sankardev Nagar, N agaon in Sessions Case No. 28(N) of 2004. 2. There are two appellants before us, both of whom have been convicted for the murder of Md. Mahmud Ali on the night of 24.10.2011. 3. It appears from the record that appellant No.2 was about 16 years of age on the date of commission of the offence and, as such, his case ought to have b een considered by the Juvenile Justice Board. However, since we have heard the a ppeal on merits and find that no reasonable grounds have been made out for convi ction of the appellants, we prefer not to remit the case of appellant No.2 to th e Juvenile Justice Board. 4. According to PW-1 Jasna Begum she and her husband (Mahmud Ali) were slee ping at their residence on the night of 24.10.2001. At about 2 a.m., Bashir ente red the house by making a hole under the wall and then opened the door. Thereaft er, Ainul, Raimul, Saiful, Nurul Haque, Mainul Nesa, Rebul (Appellant No.2) and Aftabuddin (Appellant No.1) also entered the house. 5. The persons aforesaid are said to have assaulted the Mahmud Ali and when this witness objected, she was tied up and was beaten. According to her testimo ny, her husband was hit with a crow bar and a dagger; more specifically, Bashir hit the deceased with a crow bar and after assaulting him, all the assailants le ft the place. 6. PW-1 goes to state that the deceased was then taken to the hospital, but he succumbed to his injuries the next morning. Thereafter, the First Informatio n Report (FIR) was lodged. However, in the FIR, the name of Bashir is missing. P W-1 is the only eye witness to the incident. 7. The learned Trial Judge also relied upon the evidence of PW-3 and PW-4 i n order to convict the appellants. PW-3 says that he was not an eye witness, but he saw the accused persons leaving the house of his elder brother (the deceased ) carrying a shovel and dagger in their hands. He also says that there was some enmity between the deceased and the accused persons over some land dispute in wh ich both parties were involved in Court cases. In his cross-examination, he says that he asked PW-1 about the occurrence and who the assailants were, but did no t get any reply. 8. Similarly, PW-4 admits that he was not an eye witness to the occurrence, but he says that he along with PW-3 met the accused persons coming out of the h ouse of the deceased. The accused persons then told them not to come forward oth erwise they would be hit. He says that he saw Raimul with an iron rod in his han d and Aftabuddin with a dagger in his hand and Rebul with a wooden lathi in his hand. He also says that he saw the injuries caused on the head of the deceased b y a rod. 9. The Investigating Officer entered the witness box as PW-9 but he does no t say anything about a hole having been made to enter the house of the deceased. 10. The doctor who examined the deceased was produced as a Court Witness and he opined that the injury was on the left temporal region and the scalp was fra ctured. The injury could be caused by a blunt object or due to falling over or d ashing against a hard substance. He says that he saw no other injuries on the de ceased. 11. The learned Trial Judge, on an examination of the evidence, particularly the evidence of PW-1, PW-3 and PW-4 came to the conclusion that PW-1 could not be fully believed. According to the learned Trial Judge, Bashir could not have h it the deceased with a crow bar as alleged, since at the relevant time Bashir wa s in judicial custody. The learned Trial Judge also came to the conclusion that Ainul, Saiful, Nurul Haque and Mainul Nesa were not present when the occurrence took place. Only Raimul (not convicted), Aftabuddin and Rebul were present. The learned Trial Judge did not notice that PW-9, the Investigating Officer did not make any statement about the existence of a hole in the thatched house of the de ceased through which Bashir and others are alleged to have entered. 12. Given the evidence on record, we find it very difficult to believe the s tatement of PW-1. On the one hand, the learned Trial Judge has disbelieved the e vidence of PW-1 with regard to the presence of several persons; the learned Tria l Judge has also disbelieved the evidence of PW-1 with regard to Bashir having h it the deceased with a crow bar. Yet on the other hand, the learned Trial Judge accepted her statement with regard to the presence of Raimul, Aftabuddin and Reb ul and convicted Aftabuddin and Rebul. 13. It is significant to note that there is no evidence that Rebul, a minor and a juvenile on the date of occurrence, had assaulted the deceased. Aftabuddin was carrying a dagger and there is no suggestion of any injury by a dagger or a sharp weapon on the person of the deceased. The evidence is that the deceased w as hit on the head with a blunt object. This being the situation, the evidence o f PW-1 does not inspire confidence and cannot be accepted on its face value as h as been done by the learned Trial Judge. There are just far too many discrepanci es in her testimony. 14. In so far as the evidence of PW-3 and PW-4 is concerned, they were not e ye witnesses. They contradict each other on what transpired immediately after th e occurrence. The evidence of PW-4 is that he met the assailants along with PW-3 . There is nothing to this effect in the testimony of PW-3 who says that he only saw them. It is indeed not clear whether these witnesses met or only saw the as sailants after the occurrence. Even PW-9, the Investigating Officer does not ful ly support the prosecution theory. We find that the case of the prosecution is n ot based on any trustworthy evidence. We have more than a reasonable doubt on th e involvement of the appellants in the alleged murder of Mahmud Ali. 15. Under these situations, in our opinion, the prosecution has not been abl e to make out any case beyond all reasonable doubt that the appellants committed the murder of Mahmud Ali. 16. We cannot overlook the fact that admittedly there was some enmity betwee n the family of the deceased and the appellants. It is quite possible that becau se of the enmity, the appellants have been framed in the crime. 17. Under the circumstances, we have no option, but to allow the appeal. We do so accordingly and set aside the judgment of conviction passed by the learned Trial Judge. The bail bond submitted by the appellant No.2 Rebul Ahmed stands discharged. 18. Trial Court records be sent back immediately.