Samsul Haque vs The State Of Assam

1. The incident is of 17.3.1997 at 7:00 a.m. in the morning. Keramat Ali Maral (the deceased) was having tea at the tea stall known as Kalia Hotel. It is alleged that Abdul Hai, Abdul Rashid, Imdadul Islam, Rahul Digitally signed by RACHNA Amin, Mofizuddin Islam and Abdul Rahim Faruki, being the first six Date: 2019.08.26 18:15:36 IST Reason: accused entered the stall and all of a sudden accused Nos.2 & 3 fired at 1 Keramat Ali with a pistol, while the other accused injured him by stabbing and hacking with daggers, swords, etc. Keramat Ali is stated to have died on the spot. The son of Keramat Ali, Nazrul Islam (PW-3) lodged the FIR, stating that he was present at the site along with other witnesses, but when they offered resistance, they were threatened with pistols. To save their life, they ran away from the site. Insofar as accused Nos.7, 8 & 9 are concerned, it is stated that “further it may be mentioned that the incident took place at the instance and instigation of accused Nos.7, 8 and 9.”

2. On the investigation being completed, a charge-sheet was filed and charges were framed by the Sessions Judge under Sections 147, 148, 302/149 and 302 of the IPC against all. Accused Nos.7 to 9 faced charges under Sections 302/109 of the IPC. In the course of trial, accused No.4, Rahul Amin, absconded. Accused No.1, Abdul Hai, died/ was allegedly murdered during the course of trial. On completion of trial the Sessions Judge, Morigaon found that accused No.1 was the main culprit who had killed the deceased, Keramat Ali. The trial court also found that the guilt of accused Nos.5 & 6 was also established beyond reasonable doubt.

3. The convicted accused filed an appeal before the Gauhati High Court and so did the State of Assam qua the accused who had been acquitted. The appeal of the convicted accused was dismissed by the High Court and the Special Leave Petition (‘SLP’) filed against the same was also dismissed and, thus, that matter attained finality.

9. The second limb of his submission was that three of the witnesses, PW-3, PW-4 and PW-6 were interested and inimical witnesses inasmuch as PW-3, the son of PW-4 and PW-6 were accused in the murder case of the main accused, accused No.1, Abdul Hai. The testimony of these three witnesses was stated to be full of exaggerations, embellishments and inconsistencies. An important aspect emphasised in this behalf is that the version given by PW-3 in the complaint, as recorded in the FIR, is at variance with the narration of the incident when the said witness entered the witness box. Thus, while on the one hand in the complaint it was alleged that the incident happened at the instance and instigation of the appellant and two other accused, in the testimony before the court it has been stated that these three persons ordered the other accused to catch hold of his father, the deceased, whereafter accused Abdul Rashid, who is accused No.2 shot at the deceased with a pistol while accused No.1 hit him in the chest, hands and legs with a sword. The testimony of PW-4 and PW-6 states that accused No.9 and two others asked other accomplices to hit and kill the deceased.

17. In view of the aforesaid, the last plea of the learned counsel is only stated to be rejected.

25. We are, thus, of the view that the prosecution has not been able to establish a case against accused No.9, much less beyond reasonable doubt.

30. The question, which, thus, arises is that whether, within the parameters required for reversal of an order of acquittal, the needful is met in the present case.

34. We are, thus, of the considered opinion that the prosecution has not been able to prove the case beyond reasonable doubt against these two accused, and they must get the benefit of doubt and consequently have to be acquitted.

35. The result of the aforesaid findings is that Samsul Haque, accused No.9 is entitled to a clean acquittal. He is already on bail and thus, the bail bonds stand discharged. Abdul Rashid & Imdadul Islam, accused Nos.2 & 3 respectively, are entitled to the benefit of doubt and are consequently acquitted. The said accused may be released forthwith.

36. The appeals are accordingly allowed, leaving the parties to bear their own costs.

August 26, 2019.