Crl.A. 121/2006 BEFORE HON’BLE MR JUSTICE AMITAVA ROY HON’BLE MR JUSTICE C.R.SARMA JUDGMENT AND ORDER (CAV) ( Amitava Roy,J) Being aggrieved by their conviction and the sentence consequent thereupo n, the appellants seek the annulment of the judgment and order dated 29.04.20 06 passed by the learned Addl. Sessions Judge( Adhoc), Barpeta in Sessions Case No.68/2001. 2. We have heard Mr JM Choudhury, Senior Advocate assisted by Mr BM C houdhury, Advocate for the appellants and Mr KA Mazumdar, learned Public Prosec utor ,Assam for the State. 3. The prosecution case is traceable to a FIR dated 9.11.95 lodged by on e Md Hanif Uddin with the Officer-in-Charge, Patacharkuchi Police Station inform ing inter alia that at about 6 A.M. on that day, 26 persons including the presen t appellants armed with deadly weapons like spear , arrow etc. surrounded the h ouses of Md Aziz Ali, Md Kutub Ali and Md Mamud Ali and assaulted them by break ing open their house and brining them out therefrom. The FIR disclosed that foll owing the assault, not only these 3 succumbed to their injuries , others includ ing Md Atar Ali were also injured for which he had to be admitted in the hosp ital. Patacharkuchi PS Case No.215/95 under various sections of Indian Penal Code i ncluding 149/302 and 307 IPC was registered and after completion of the investig ation, charge sheet was laid against 13 persons. Two accused namely, Md Saifuddi n and Airon Bibi were shown to be absconders . Out of the accused persons sen t up for trial, Md Asan Ali expired and charges were framed against the remaini ng 12 including 8 appellants under Sections 148/149/302/307 read with section 34 of the Indian Penal Code by the learned trial court. The charged persons havi ng pleaded not guilty , their trial followed. 4. The prosecution examined 14 witnesses including the doctors who ha d performed the post mortem examinations as well as the Investigating Officers. The statements of the accused persons who stood trial were duly recorded unde r Section 313 Cr.P.C. following which they in defence examined two witnesses. T he trial court on a consideration of the evidence on record both oral and docume ntary ,convicted the accused appellants under Sections 148/323/302/149 IPC. Oth er accused persons were acquitted. On their conviction as above, the accused app ellants were sentenced to (1) undergo rigorous imprisonment for life with fine o f Rs.1000/- each, in default, to suffer rigorous imprisonment for further two months for the offence under Section 302 of the Indian Penal Code (2) R.I. for three months with a fine of Rs.500/- in default, to suffer S.I. for further one month for the offence under Section 323 IPC and (3) R.I. for six months with a fine of Rs.500/- in default, to suffer S.I. for further two months for the of fence under Section 148 IPC. All sentences were ordered to run concurrently . 5. Mr Choudhury has persuasively urged that as the evidence of the pr osecution witnesses who claim to have seen the incident mutilate each other on material particulars, the charge against the accused appellants had by no mean s been proved beyond all reasonable doubt. Apart from glaring omissions in th e statements of the witnesses made before the police in course of the investiga tion which rendered them wholly untrustworthy , the ocular evidence also direc tly militates against the medical evidence thus demolishing the substratum of the prosecution case, he argued. According to Mr Choudhury, the FIR per se is deficient in material particulars, in as much as, it does not disclose the name of Samir as one of the deceased though sought to be brought out in the evidence in the trial and further does not indicate the names of the witnesses as well. Without prejudice to the above, the learned Senior counsel has urged that even if the evidence of the prosecution witnesses is taken on their face value, it demonstrates the free fight between the two groups leading to deaths and injur ies on both sides. In that view of the matter, Mr Choudhury has urged that sect ion 149 IPC is not attracted to the facts of the case and in absence of any conv incing evidence attributing specific culpable act to the accused appellants, t heir conviction and sentence is unsustainable in law. He further urged that th e place of occurrence as has surfaced in the evidence on record, suggests that the complainant party had been the aggressors and that as a cross case by t he accused party had also been instituted on the same incident, by no means they ( accused party) could be ascribed a common object to sustain the charges level led against them . 6. The learned Public Prosecutor in reply, however,has maintained that the evidence of the eye witnesses namely PWs 1,2,3,7,8 and 9 read in conj unction with the documentary evidence more particularly, the post mortem repor ts Exts.8,9,10 and 11 would unequivocally identify the accused appellants to be the perpetrators of the offence with which they had been charged and that the refore, their conviction and sentence is valid in law. According to Mr Mazumdar , the minor discrepancies in the narration of the sequence of events by the e ye witnesses per se do not efface their evidence or dent their trustworthine ss and therefore the plea to the contrary is untenable. As the oral and docume ntary evidence on record unerringly reinforce each other to prove to the hilt the guilt of the accused appellants, no interference with the impugned judgment and order is warranted, he urged. 7. To appropriately comprehend and appreciate the competing argume nts, a brief survey of the evidence has to be essentially undertaken. 8. Noticeably, the FIR which had been filed on the very same day of the incident does not mention about the death of Samir, who as the evidence dis closes was also killed in the incident. It also does not disclose the names of all the injured except that of ne Md Atar Ali (PW 7).Though it does not name the witnesses to the incident, it reveals those of the accused persons includi ng the appellants herein. 9. PW 1, Md Hanif Ali son of one of the injured namely, Atar Ali cl aimed to have seen the incident of assault. The witness on oath has stated that around 6-30 a.m. of the day, appellant Nos 2,4,5,8 and others had broken their house and caused serious injuries to his father and the deceased Mamud Ali, Az iz Ali , Md Kutub Ali and Samir Ali by means of spires. According to this witn ess, whereas the other four persons died of their injuries at the spot ,his fa ther was taken to a nursing home at Nalbari with serious injuries below his ches t. He asserted that the incident was also seen by his own brother Putul Ali(PW 2) ,his uncle, Md Nazim Ali (PW 3) , his mother, Hanufa Begum, Afia Begum (PW 8 ), uncle Bhumidhar Ahmed (PW 9) , Akos Ali and others. He owned the FIR (Ext.1) filed by him and proved the signature [Ext.1(1)]. He also proved the seizure o f a Bamboo pole vide Ext.2 and bamboo bows i.e. Ext. 3. In cross examination, while claiming to have written the FIR himself, t his witness expressed ignorance about the injuries or death on/of any person o n the other side. He however, admitted to be an accused in the cross case file d by Ms Promila Begum wife of Turen who allegedly had been murdered. He denied the suggestion that Turen had in the same clash been killed by his group of people. He also denied the suggestion that his side had been the aggressors. 10. PW 2, Sri Putul Ali also son of the injured Atar Ali stated that at ab out 6/6-30 a.m. on the day of the occurrence ,the appellant Nos 1,2,3, 5 and 8 along with Sayek Ali and other accused persons being armed with bows , arrows , spear etc. had attacked his uncle Azizuddin Ahmed, Mamud Ali , Samir Ali and Ku tub Ali as well as his father Atar Ali. He confirmed that in the assault, his fa ther was seriously injured ,while Aziz, Samir and Kutub were killed. He testif ied about lodging of FIR by his brother Hanif Ali and also proved the inquest r eport Ext. 4 prepared by the police. In cross examination, this witness admitted to have been arrayed as an accused in the cross case filed by Turen’s wife Promila Begum. He also denied t he suggestion to have amongst others attacked Turen and injured him grievousl y. 11. PW 3, Md Nazimuddin Ahmed stated that about 6 a.m. on the date of the occurrence , he was informed by Md Aziz that there was a quarrel at their far m house . While they proceeded in that direction, the appellant No.4 thrust a spear into Aziz. The said accused appellant also charged him to assault with th e spear, but withdrew at the intervention of the neighbours. The witness stat ed that on reaching the spot, he found Mahmud Ali, Samir Ali, Kutub Ali to be de ad. According to him, Aziz Ali also died on the way. He proved the inquest repor ts Exts. 4 and 5. He also in his cross examination admitted to have been implea ded as an accused in the cross case filed by Promila Begum. He pleaded of not ha ving seen the rest of the occurrence except the assault on Aziz. He similarly denied the suggestion to have seen the attack on Turen along with others who l ater on had succumbed to his injuries at the Gauhati Medical College Hospital. 12. PW 4, Akkas Ali and PW 10 are not the eye witnesses to the incid ent and have stated to have seen the dead bodies of the four persons aforesaid and the injuries on others on their visit to the place of occurrence. Whereas, PW 3 confirmed the death of Turen, PW 10 in his cross examination state d to have admitted about the quarrel between Turen and the deceased persons. 13. PW 11. Ajit Khataniar was declared hostile by the prosecution. He i n his examination in chief not only stated to have seen the dead bodies lying i n the place of occurrence, in his cross examination by the defence, he also stat ed to have heard about the quarrel between Aman and Turen and also stated to h ave heard about the death of Turen. 14. PW 7, Md Atar Ali ,injured testified that around 5 a.m. on the date of occurrence, while he was engaged in his agricultural pursuits in his own com pound, on hearing hue and cry, he went to his courtyard and saw appellant No.5 ( Moktab Ali) assaulting Aziz Ali with a heavy bamboo stick on which the latter fell on the ground. The witness also stated to have seen the appellant No.4 ( Mo jib) stabbing Aziz Ali with a spear. He further deposed to have seen the app ellant No.8 ( Nurej Ali) assaulting Samir Ali with a lathi and thereafter the appellant No.6 ( Rekib Ali) stabbing him with a spear. He further stated that Sayek Ali felled his(witness) brother Kutub Ali on the ground by assaulting him with a heavy bamboo stick. The witness deposed that the accused appellant No.2 (Islam Ali) also stabbed Kutub with a spear . He attributed the injuries in the chest of Mamud Ali to the accused appellant No.1 (Rojali) and the accu sed appellant No.7( Ruken Ali) with a spear. He stated that he was also assaul ted with a spear in his chest by the accused appellant No.3 (Fazal Ali) on whi ch he collapsed unconscious. The witness stated that in view of the assault, Azi z, Samir , Kutub Ali and Mahmud Ali had died. In cross examination, this witness disclosed that the place of occurrenc e was on the road about a furlong away from his house. He was inter alia conf ronted with several omissions in his statement made before the police under Se ction 161 Cr.P.C. He denied the suggestion of incident of assault between Turen Ali and his (witness) four brothers. 15. PW 8, Afia Begum also claiming to be an eye witness stated that the ap pellant No.5 (Muktab Ali) and the appellant No.4 Majij had assaulted Aziz with a spear in his chest. She also confirmed the assault on Samir Ali by a spear by the accused appellant No.8 (Nurej Ali) following which the injured died. She also stated that the accused appellant No.1 Rose Ali and Sayek Ali had thrust a spear in the abdomen of Kutub Ali. He also died at the spot. Similarly, the witness deposed that the accused appellant No.6 (Rakib) and the accused appella nt No. 7( Rukon ) impelled Mahmud Ali in his chest with a spear and he succumbe d to his injuries instantaneously . This witness however, in cross examinati on , admitted the attack on Turen Ali who was also involved in the very occurren ce. She also admitted that a cross case had been filed against Hanif Ali by Tu ren’s wife. She further testified that Turen Ali and Aman Ali had a quarrel wi th her husband Hanif ,Kutub and Atar in which several persons from the side of the accused were also injured. 16. PW 9, Bhumidhar Ahmed testified that on the day of the occurrence , whil e he was going to his orchard behind his house, he was requested by Ajiz Ali to accompany him . As he followed Ajiz Ali, accused appellant No.5 (Kuktab) assault ed him(Ajiz) with a heavy bamboo stick. Accused No.4( Majib Ali) then thrust a s pear in his abdomen . As Samir Ali came out of hearing the commotion , accused appellant No.1 ( Rose Ali) stabbed him with a spear. The witness stated that th en Mahmud Ali came to the place of occurrence and hit on the head of Turen Ali with a spear. Accused appellant No.2 Islam thereafter stabbed Mamud Ali in his c hest with a spear. Sayek Ali and persons from accused No.1 (Islam Ali)’s side ,t hen attacked with bows and arrows. The witness confirmed that Ajiz, Mamud , Kut ub and Samir died on the spot. He proved the seizure list of bamboo, Lathi (Ext. 12) . In cross examination ,this witness disclosed that the occurrence had tak en place in front of the house of Kutub. He affirmed to have seen Mumud hitting on Turen’s head and that the latter had died after a few days. He also stated a bout a case being filed by Turen’s wife against the complainant and his associa tes. 17. PW 5, Dr Chittaranjan Das who performed the post mortem examination on the dead bodies of Ajiz and Samir stated on oath ,to have found the followi ng injuries :- Aziz- (1) one incised wound is present over the right upper part of the abdomen which is 10cm x 5 cm x upto the cavity. The nature of injury is ante- mortem. Samir:- (1) One punctured wound over the left upper abdomen just below the 12th rib, which is 2.5 cm x 2.5 cm x upto the cavity. This witness proved Exts 8 and 9 the post mortem reports and also opined that d eath had occurred due to shock and haemorrhage as a result of the injuries susta ined. 18. PW 6, Dr G Hussain had performed the post mortem examination on the d ead body of Mahmud and Kutub and stated to have found the following injuries :- Mahmud :- (i) One stab wound of about 2 inch x 4 inch. on the upper part of the abdomen right side. Part of the small intestine comes out,(ii) one cut injury present on the first part of the small Intestine,(iii) Rapture of the right lobe of liver found Blood present at the abdominal cavity and plurae Cavity. Injuries were caused by sharp weapon and ante mortem in nature and grievous. Kutub:- (i) One stab wound of about 2 inchx 4 inch on the right side of the chest lower part with rapture of the right lobe of lung and plurae,(ii) One stab wound about 2 inch x 5 inch on the upper part of the abdomen below the xyploxi sternum with rapture of the stomach . He proved the post mortem reports Exts 10 and 11 respectively and opined tha t the death had caused due to shock and haemorrhage as a result of injuries sus tained which were caused by sharp weapon. He also stated about the absence of a ny injury other than those mentioned about or caused by any blunt weapon. 19. PWs 12,13 and 14 are the Investigating Officers of the various stages of the process. PW 12 in particular deposed with reference to his case d iary that PW 7 stated before him that he had learnt from the family members that the accused persons had assaulted and killed Kutub, Aziz and Mahmud. The witne ss further deposed that PW 7 had not stated before him about the assault by appe llant No.8,Nurezh Ali on the deceased Samir with a stick and that accused appel lant N.6( Rekib) had stabbed him (Samir) with a spear. The Investigating Officer also stated that PW 7 had not disclosed to him that appellant No.3 ( Fazal Ali) had pierced him with a spear in his chest. He further stated that PW 8 Afia had told him that Monjit had killed her husband. This Investigating Officer al so with reference to his case diary stated that PW 9 had not disclosed to him that accused appellant No.4 Mojib had stabbed Aziz with a spear and that accus ed appellant No.1 Rojali did so to Samir Ali. He also testified that PW 9 had not told before him that accused appellant No.2 Islam had punctured Mamud in his chest with a spear. 20. The defence of the accused persons at the trial was one of denial simpliciter. They however, examined two witnesses . 21. DW 1, Sri Satish Das and DW 2, Sri Tarun Das are not the eye witnes ses of the incident as is evident from their testimony. They stated about an i ncident prior to the occurrence in which the deceased Mahmud, Kutub , Samir and Sajid had charged at Sayek,but could not apprehend him. Thereafter Turen, Sami r and Aman and his family members gathered near the shop of Sayek and were invo lved in a quarrel in which Sajid, Mahmud,Kutub and Samir died. They stated to have seen the injuries on the persons of Turen who eventually died therefrom , but did not identify the assailants. The evidence of the defence witnesses as t he analysis thereof would reveal is therefore not of any significance bearing on the issues. 22. Reconciling the evidence of the eye witnesses ,the involvement of the accused appellants surface as hereunder : Deceased Accused Witness weapon 1) Aziz All PW 1 Spear Rose Ali, Islam, Fazal, Muktab, Nurej and ors PW 2 Bows, arrows ,spear Majib, PW 3 spear Majib & Muktab PW 7 Heavy bamboo stick, Majib & Moktab PW 7 spear Majid ,Moktab PW 8 Spear Moktab PW 9 lathi Majid PW 9 spear 2) Samir Rose Ali, Islam, Fazal, Muktab, Nurej and ors PW 2 Bows, arrows, spear Nurej PW 7 lathi Rakib PW 7 Spear Islam, Nurej PW 8 Spear Rose Ali PW 9 Spear 3) Kutub Rose Ali, Islam, Fazal, Muktab, Nurej & Ors Sayek Ali Islam PW 2 PW 7 Spear Bamboo stick, spear Rose Ali, Sayek PW 8 spear 4) Mahmud Rose Ali, Islam, Fazal, Muktab, Nurej & Ors PW 2 Spear Rose Ali, Rakib PW 7 Spear Rakib, Rukon PW 8 spear Islam PW 9 Spear Injured, Atar Accused Rose Ali, Islam, Fazal, Muktab, Nurej & Ors Witness PW 2 Weapon Bow,arrow, spear Fazal PW7 (injured) spear 23. The postmortem reports Exts.8,9,10 and 11 vis a vis the four de ceased persons disclose incised as well as punctured wounds varying from on e to three in numbers inflicted by sharp cutting weapon(s). These injures have been located to be in the abdomen /chest. In the case of deceased Mahmud a cut i njury in the intestine and rupture of liver have also been detected. Noticeably , no injury caused by any blunt weapon has been identified on any of the dead b odies ,though use of a heavy bamboo stick has been asserted to have been made by the assailants. By and large , the injuries sustained by deceased substant ially correspond to the assaults and the causative weapons stated to have bee n used by the assailants. In reciting the sequence of events ,the eye witnesses might not achieve a fla wless precision. The discernible marginal discrepancies notwithstanding, th e testimony of the eye witnesses in the case in hand otherwise inspires confid ence to be acted upon. The contradictions through omissions in the statemen ts of PWs 7, 8 and 9 made in course of their examination under Section 161 Cr .P.C. however ought not to be disregarded. But their testimony even if left out of consideration that of PWs 1,2 and 3 remain unshaken and unscathed . Taking note of the injuries on the dead bodies , absence of any caused by a blunt weap on, in view of the otherwise consistent and categorical evidence of PWs 1,2 an d 3, ipso facto does not terminate the prosecution case as a whole. The incise d punctured wounds sustained by the deceased having regard to the size and situ s thereof as well as the organ affected thereby were visibly fatal. The evide nce of eye witnesses though overlap with regard to the roles attributed to the accused persons , a dominant trait of coherence and cogency is decipherable rend ering it convincing and persuasive in essence. The traces of discrepancies in the narration of the details by the eye witnesses are visibly the yields of def iciency in their faculty of retention with mathematical precision but , havin g regard to the nature of the incident and the serial progression of the event s in quick succession in a pandemonium , in our estimate their evidence cons idered as a whole is reliable and credible. The evidence of the injured PW 7 i s supplemented by that of PW 2 and therefore ought not to be discarded lock, st ock and barrel. However, as no medical evidence has been adduced in support o f the injuries sustained by him, the conclusion recorded by the learned trial c ourt convicting the accused appellants under Section 323 IPC is sustained. 24. The evidence on record though demonstrate involvement of two groups resulting in death and injuries on both sides in course of the same incident, materials are lacking to amply bare the genesis thereof so as to identify t he complainant and his party to be the aggressors. The place of occurrence also does not acknowledge this with any certainty. Undeniably, the casualties are much higher on the side of the complainant than that of the accused persons . Whereas, the evidence in the instant proceeding mentions about the number of accused persons, there is none to reveal the size of the assembly for the com plainant. Only because, there is one death in the camp of the accused persons as well as injuries, the same may not lead to the irresistible conclusion of a mutual fight between the two factions. Whereas, on one hand, the evidence of the prosecution witnesses namely PWs 1,2 and 3 in particular evince a barrage