Crl.A. 103/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE A.C.UPADHYAY Ranjan Gogoi, J This appeal is directed against the judgment and order dated 27. 3.2007 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 54/06 whereby the accused/ appellant Ainal Ali Dewan has been convicted under Section 302 IPC and sentenced to undergo R.I. for life. A fine of Rs. 10,000/-, in defau lt, to suffer R.I. for two years more has also been imposed on the accused/ appe llant by the learned Trial Court. 2. The prosecution case in short is that on 17.9.2002 at about 11.3 0 p.m. P.W.1, Sahadul Islam, lodged an FIR in the Barpeta Police Station stating that at about 8.30 p.m. of the same day the first informant along with Sirajul Islam (P.W.3) and the deceased Molana Abul Kalam Azad had gone to the house of o ne Mridul Ali at Muslimpatty, Barpeta in connection with a threat of death meted out to Molana Abul Kalam Azad by the accused/ appellant and two others i.e. Moi nal Hoque Dewan and one Siddique Goyal. According to the first informant, Mridu l Ali had advised the deceased to lodge an FIR in respect of the alleged threat meted out to him and had also promised to look into the matter on the next day. Thereafter, according to the first informant, they had returned home. On the ret urn journey as the house of the first informant was first to be reached he went inside the house and soon thereafter he heard a hue and cry. Coming out, he foun d the deceased lying with serious injuries on the head. The deceased was thereaf ter taken to the Barpeta Civil Hospital in a hand cart. But he died on the way. 3. On the basis of the aforesaid FIR lodged, Barpeta P.S. Case No. 448/02 u/s 302/34 IPC was registered against the accused/ appellant and accused Moinal Hoque and Siddique. P.W.9, Atul Hazarika, S.I. of Police was entrusted wi th the investigation of the case, in the course of which, he along with police party visited the place of occurrence; prepared a sketch map and held inquest on the dead body which was also sent for post mortem examination. The statements o f the persons acquainted with the crime alleged were recorded by the Investigati ng Officer under Section 161 CrPC. Thereafter, on receipt of the post mortem rep ort and upon conclusion of the investigation chargesheet was submitted against a ll the three accused persons under Section 302/34 IPC. As the offence under Sect ion 302 IPC is exclusively triable by the Court of Sessions the learned SDJM(S), Barpeta by order dated 12.5.2006 committed the case for trial to the Court of S essions at Barpeta. In the Trial Court charge under Section 302/34 IPC was frame d against the accused/ appellant and the other two accused to which they pleaded not guilty. In the trial held, ten witnesses were examined on behalf of the pro secution. No defence evidence was led. However, the accused/ appellant as well a s the other two accused were examined and their statements recorded under Sectio n 313 CrPC. Thereafter, at the conclusion of the trial, the accused/ appellant h as been convicted and sentenced as aforesaid giving rise to the present appeal. 4. It may be specifically noticed, at this stage, that by the impug ned judgment dated 27.3.2007 the learned Trial Court has also convicted accused Siddique under Section 302 IPC and has sentenced him to undergo R.I. for life. N o appeal has been filed by the aforesaid accused. It may also be noticed, at thi s stage, that the third accused i.e. Moinal Hoque was declared an absconder. 5. It will be necessary to notice, at this stage, though very brief ly, the core of the evidence adduced by the witnesses examined by the prosecutio n. P.W.1, Sahadul Islam (first informant) in his deposition had sta ted that at about 8 p.m. of the date of occurrence a quarrel had taken place bet ween accused Moinal Hoque and Siddique on the one hand and the deceased on the o ther. According to P.W.1, the accused persons had threatened the deceased with d ire consequences and, in fact, had chased the deceased with a view to assault hi m. However, due to the intervention of some neighbours the accused had left the place. Thereafter, the deceased requested P.W.1 and Sirajul Islam (P.W.3) to acc ompany him to meet one Mridul Ali at Barpeta. According to P.W.1, they met the a foresaid Mridul Ali and they were advised that as it was already late an ejahar should be lodged on the next day. Furthermore, according to P.W.1, Mridul Ali as sured that he would deal with the matter in the next morning. P.W.1 had further deposed that while returning home P.W.3, Sirajul Islam entered his house first a nd, thereafter, he (P.W.1) went inside the house and the deceased went to his ow n house. The time, according to P.W.1, was around 9.30/10 p.m. Immediately after entering his house P.W.1 heard ’hulla’ from outside and he came running to the place of occurrence. There he found the deceased lying on the ground with head i njuries. P.W.1 has further deposed that at that time P.W.4, Sultana Rajia (daugh ter of the deceased) and P.W.5, Sakina Khatton (wife of the deceased) were prese nt. P.W.1 has specifically deposed that he could see the three accused including the accused/ appellant running away from the place of occurrence. According to P.W.1, the deceased was taken to the hospital in a handcart but he died on the w ay. Thereafter, P.W.1 along with P.W.3, Sirajul Islam went to inform Mridul Ali of the incident. One Kayum who was an advocate was also informed of the incident . In cross-examination, P.W.1 had denied that he had stated before police that on going to the place of occurrence he did not find any of the accu sed there and that he had heard about the incident from the wife of the deceased . 6. P.W.2, Mridul Hussain is the person whom the deceased along with P.W.1 and 3 had gone to meet in the evening of the date of occurrence. P.W.2 ha s deposed that the deceased along with P.W.1 and 3 had met him at about 9.30 p.m . and had informed him of the quarrel that had taken place between the family of the deceased and the accused. According to P.W.2, he advised the deceased to lo dge an ejahar in the next morning. However, after about half an hour P.W.1 and 3 came running and informed him that Moulana Abul Kalam Azad had been killed. In cross-examination, P.W.2 had stated that his house is at a di stance of about 1 k.m. from the house of the deceased. 7. P.W.3, Sirajul Islam is the second person who had accompanied th e deceased to the house of P.W.2, Mridul Hussain in the evening of the date of o ccurrence. P.W.3 has corroborated P.W.1 and 2 with regard to the events that had occurred when the deceased along with him and P.W.1 had gone to meet P.W.2. Acc ording to P.W.3, on their return from the house of P.W.2, as his house was to be reached first, he entered the house and soon thereafter he heard ’hulla’ coming from the direction of the house of the deceased. P.W.3 has deposed that he ran to the said place and on reaching the place of occurrence he found the deceased Molana Abul Kalam Azad lying on the road. According to P.W.3, the daughter and t he wife of the deceased (P.W.4 and 5 respectively) were present at the place of occurrence. P.W.3 has further deposed that he could see the three accused includ ing the accused/ appellant running away from the place of occurrence. P.W.3 has corroborated the subsequent facts as deposed to by P.W.1, namely, that they had gone and informed P.W.2 of the incident. From the elaborate cross-examination of P.W.3 the location of th e shop house and the residence of P.W.3 was established by the defence. However, in his cross-examination P.W.3 had stated that he had spent the night in his sh op house and not in his residence and that it took him only two minutes to reach the place of occurrence from his shop house after hearing ’hulla’. 8. P.W.4, Sultana Rajia is the daughter of the deceased who deposed that at about 6 p.m. of the date of occurrence an altercation had taken place b etween her mother and the wife of the accused Siddique. At that time the decease d was not at home. When the deceased had come back home the incident was reporte d to him by P.W.4 and 5. Thereafter, according to P.W.4, at about 9 p.m. the thr ee accused persons came and threatened to kill the deceased. However, due to int ervention of some villagers the accused persons were compelled to leave their ho use. Thereafter, according to P.W.4, the deceased went out of the house and at a bout 9.30 p.m. while returning home, near the house of the accused Siddique she heard sound of ’dao’ blows. Along with her mother (P.W.5) she came out and found the deceased lying on the ground with severe bleeding injuries. According to P. W.4, she saw the three accused persons running away from the place of occurrence . On a hue and cry being raised, people from the neighbourhood had gathered. In cross-examination, P.W.4 had specifically mentioned the names of Nazrul, Jalal, Moher and Ismail as the persons who had come to the place of occurrence on hearing the hue and cry. P.W.4 had further stated in her cross-exa mination that she saw the deceased lying on the ground and the accused fleeing a way from the place of occurrence from the courtyard of their house. 9. P.W.5, Sakina Khatoon is the wife of the deceased who had corro borated P.W.4 with regard to the incident of quarrel that had taken place earlie r. According to P.W.5, as her husband had gone along with P.W.1 and 3 to meet P. W.2 and her husband had not returned, the family members were standing outside t he house. At this point of time, according to P.W.5, she heard sound of somethi ng blowing . According to P.W.5, on hearing the said sound she went towards the road and in the moonlit night she could recognize the three accused fleeing from the place of occurrence. P.W.5 had specifically deposed that accused Moinal was armed with a long dagger and that she had failed to notice any weapon on the ha nd of the other two accused. P.W.5 had also deposed that her husband was lying o n the ground near the house of accused Siddique and he had sustained bleeding in juries. In cross-examination, P.W.5 had specifically stated that from th e courtyard of their house the place of occurrence was not visible as the house was surrounded by bamboo ’bera’ of about 6/7 ft. height. 10. The evidence of P.W.6 and 7 would not be very material as both t he witnesses came to know of the incident from others and had gone to the place of occurrence only to find the dead body of the deceased. 11. P.W.8, Dr. Ajit Kr. Sarmah had conducted the post mortem of the deceased in the Barpeta Civil Hospital on 18.9.2002. The findings of the post mo rtem including the opinion as to the cause of death are as follows:- INJURIES :- 1) Multiple cut injuries involving the right side of head. 2) Temporal and parietal region with soft tissue injury of the part includi ng right auricle and surrounding part. 3) There is also fracture with multiple fragment of underlying bones of sku ll. 4) Brain matter is coming out through the wounds. 5) Cut injury in the occipital region 7 cm x 3 cm x 3 cm in size lying obl iquely and with exposure of underlying bone. 6) Multiple cut injury on the frontal skull. Blood- clots inside the cranial cavity. Brain matter is lacerated and coming ought through fracture of skull bone. Other organs are healthy and pale in appearance. All the injuries are ante-mortem in nature. OPINION:- In my opinion, death is due to shock and haemorrhage as a result of in jury sustained. Ext. 3 is my post mortem report. Ext.3(1) is my signature. . 12. P.W.9, Atul Hazarika., S.I. of Police had conducted the investig ation of the case. Apart from deposing on the different stages of the investigat ion, P.W.9 in his cross-examination had stated that in his examination under Sec tion 161 CrPC P.W.1, Sahadul Islam had stated that when he had gone to the place of occurrence he did not see any of the accused there and further that he had h eard about the occurrence from the wife of the deceased. P.W.10, Mathura Borkakoty is another police officer who submitte d chargsheet in the case. 13. Mr. FH Laskar, learned counsel for the accused/ appellant has su bmitted that the identification of the accused/ appellant by the prosecution wit nesses at the time when the incident had occurred i.e. 9.30/10 p.m. is highly do ubtful, particularly when none of the witnesses had deposed as regards the avail ability of any electricity or light at or near about the place of occurrence. Mr Laskar has further submitted that though the FIR was written in the office of A dvocate Kayum, the said person was not examined. It is further submitted that th ough, according to P.W.4 and 5 i.e. the daughter and wife of the deceased, other persons had come to the place of occurrence on hearing hue and cry and P.W.4 in fact had named four of such persons, none of the aforesaid independent witnesse s have been examined. That apart, according to the learned counsel for the appel lant, the evidence of P.W.1 and 3 who had deposed that they had found only the d aughter and the wife of the deceased (P.W.4 and 5) at the place of occurrence i s clearly contrary to the evidence of P.W.4 and 5. The learned counsel has also pointed out that from the evidence of P.W.9 the version unfolded by P.W.1 that h e had seen the accused/ appellant and the other two accused running away from th e place of occurrence is not believable, inasmuch as, in his statement to the In vestigating Officer the said witness had clearly stated that when he had arrived at the place of occurrence he did not find any of the accused persons and had h eard about the incident from the wife of the deceased. Lastly, it is contended b y the learned counsel for the appellant that the evidence of P.W.4 and 5 is high ly contradictory, inasmuch as, according to P.W.4, she could witness the inciden t from the courtyard whereas, according to P.W.5, the place of occurrence was no t visible from the courtyard of the house. In this regard, the learned counsel f or the appellant has submitted that on a conjoint reading of the evidence of P.W .4 and 5 it would transpire that both the aforesaid witnesses were together at t he time of the occurrence. 14. Controverting the submissions advanced on behalf of the accused/ appellant, Mr Z Kamar, learned Public Prosecutor has contended that the discrep ancies in the evidence of the prosecution witnesses as pointed out on behalf of the accused/ appellant are minor discrepancies which do not affect the core of t he prosecution case. Rather, such discrepancies prove and establish that the ver sion unfolded by the prosecution witnesses is a correct account of what had happ ened at the time of the incident. The learned Public Prosecutor has specifically contended that even if the contentions advanced on behalf of the accused/ appel lant, as noticed, are to be accepted, no discrepancy in the evidence of P.W.3 ca n be found. It is the submission of the learned Public Prosecutor that the evide nce of P.W.3 can furnish an independent basis for sustaining the conviction of t he accused/ appellant. 15. We have considered the submissions advanced by the learned couns els for the contesting parties. We have also carefully considered the evidence a dduced by the prosecution witnesses. P.W.1 who claims to have reached the place of occurrence soon after the incident and who further claims to have seen all th e three accused persons running away from the place of occurrence had stated bef ore the Investigating officer that when he had arrived at the place of occurrenc e he did not find any of the accused persons there and further that he had came to know of the incident from the wife of the deceased. The aforesaid fact is bor ne out from the evidence of P.W.9 i.e. the Investigating Officer. If P.W.9 is to be believed it would transpire that the version unfolded by P.W.1 with regard t o seeing the accused fleeing away from the place of occurrence is an improved ve rsion introduced by him in Court. We, therefore, do not propose to rely on the e vidence of P.W.1. 16. P.W.4 and 5 i.e. the daughter and the wife of the deceased as pe r their statements made in Court were together at the time of the occurrence. Wh ile P.W.4 in her statement had unambiguously stated that she had seen the deceas ed lying on the ground and the accused fleeing away from the place of occurrence from the courtyard of the house, the evidence of P.W.5 is to the effect that on account of the bamboo ’bera’ which was surrounding the house it was not possibl e to see the incident from the courtyard of the house. In view of the aforesaid serious contradiction in the version of P.W.4 and 5, we have serious reservation in accepting the evidence of the aforesaid two witnesses i.e. P.W.4 and 5. 17. This will bring the Court to a consideration of the evidence ten dered by P.W.3. The substratum of the evidence of P.W.3 is that after returning from the visit to the house of P.W.2 along with the deceased and P.W.1 he had en tered his shop house and shortly thereafter he heard ’hulla’ coming from the dir ection of the house of the deceased. P.W.3, thereafter, ran to the said place an d saw the three accused persons running away from the place of occurrence. Thoug h the learned counsel for the accused/ appellant has made a valiant attempt to s atisfy the Court that the shop house of P.W.3 being situated at a distance of at least one furlong from the place of occurrence, it was not possible for P.W.3 t o reach the place of occurrence quickly enough to see the accused persons runni ng away from the said place, on a careful consideration of the cross-examination of P.W.3, we are not inclined to accept the contention advanced by the learned counsel for the accused/ appellant. P.W.3 has clearly stated that it took him ba rely two minutes time to reach the place of occurrence which having regard to th e distance between the shop house of the witness and the place of occurrence was possible to be reached. In this regard, a reading of the evidence of P.W.8, Dr. Ajit Kr. Sarmah would indicate that there were multiple injuries on the body of the deceased which would suggest that the assault on the deceased must have con tinued for some time before the accused persons had fled away from the place of occurrence. If that be so, it is our considered view that on a balanced consider ation of the evidence on record, it is possible to reach the conclusion that P.W .3 could have reached the place of occurrence from his shop house to witness the accused persons fleeing from the said place. The recognition of the accused per sons by P.W.3 is also acceptable in view of the fact that the occurrence took pl ace on a moonlit night (as deposed to by P.W.5) and the accused persons as well as P.W.3 were virtually neighbours living in the same village for long. We are, therefore, inclined to take the view that the version of P.W.3 is acceptable and believable. Our further considered view in the matter is that the evidence of P .W.3 clearly establishes the culpability of the accused/ appellant in the incide nt of assault on the deceased as a result of which the deceased died shortly the reafter. 18. On the view that we have taken with regard to the evidence of P. W.3, we do not find any infirmity with the conviction recorded by the learned Tr ial Court and the sentence imposed. 19. We, therefore, dismiss this appeal and affirm the judgment and o rder dated 27.3.2007 passed by the learned Sessions Judge, Barpeta in Sessions C ase No. 54/06.