Md. Jabbar Ali vs The State Of Assam

Md. Jabbar Ali & Ors. … APPELLANT(S)

Vs.

The State of Assam ... RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.1128 OF 2010

Md. Ajmot Ali … APPELLANT(S)

Vs.

The State of Assam ... RESPONDENT(S)

JUDGMENT

NAGARATHNA, J.

1. These Criminal Appeals have been filed assailing the common

impugned judgment and order dated 21.08.2009 passed by the Signature Not Verified

Gauhati High Court in Criminal Appeal No. 48 of 2007 by which the Digitally signed by DEEPAK SINGH Date: 2022.10.17 18:16:19 IST Reason:

judgment of conviction dated 29.12.2006 and order of sentence dated

1 30.12.2006 passed in Special Case No.46 of 2004 by the Court of

Additional Sessions Judge, Fast Track Court, Barpeta (‘Fast Track

Court’, for the sake of convenience) has been upheld by dismissing the

aforesaid appeals and consequently confirming the conviction of all the

accused persons.

2. Since both the criminal appeals arise out of a common impugned

judgment, these appeals were heard together and are being disposed

of by this common judgment.

3. For the sake of convenience, the parties shall be referred to as

per their rank before the Fast Track Court.

4. The Fast Track Court vide its judgment dated 29.12.2006

convicted the appellants herein viz., Md. Yunush Ali (accused No.1),

Md. Hasan Ali (accused No.2), Md. Omar Ali (accused No.3), Md.

Jabbar Ali (accused No.4), Md. Tabibor Rahman (accused No.5), Mustt.

Hazerabhanu (accused No.6), Mustt. Chandrabanu (accused No.7),

Md. Moyan Ali (accused No.10) and Md. Sahed Ali (accused No.11) [all

appellants in Criminal Appeal No. 1105 of 2010] and Md. Ajmot

Ali (accused No. 8) [appellant in Criminal Appeal No. 1128 of 2010].

5. The present appeal qua accused No.1 stood abated vide order

dated 04.10.2010 since he died on 06.11.2009 during the pendency of

the aforesaid appeals.

6. By its judgment dated 30.12.2006, the Fast Track Court

sentenced accused Nos.4, 10 and 11 to undergo rigorous imprisonment

2 for life along with a fine of Rs.2,000/- each and in default thereof to

undergo rigorous imprisonment for two months more, for commission

of offence punishable under Section 302 read with Section 149 of the

Indian Penal Code (‘IPC’, for short). Each of these accused have been

sentenced to undergo rigorous imprisonment for one year each for the

offence punishable under Section 148 IPC, rigorous imprisonment for

six months for the offence punishable under Section 323 IPC read with

Section 148 IPC and rigorous imprisonment for two months for the

offence punishable under Section 447 IPC read with Section 149 IPC.

All the sentences were directed to run concurrently.

7. By the same judgment of the Fast Track Court, accused Nos. 2,

3, 6, 7 and 8 were sentenced to undergo simple imprisonment for a

period of one year each for the offence punishable under Section 148

IPC, simple imprisonment for six months for the offence punishable

under Section 323 IPC read with Section 149 IPC and simple

imprisonment of two months for the offence punishable under Section

447 IPC read with Section 149 IPC. All the sentences were directed to

run concurrently.

8. By the judgment of the Fast Track Court, accused Nos.1 and 5

were sentenced to undergo simple imprisonment for a period of one

year each for the offence punishable under Section 148 IPC; simple

imprisonment for one year for the offence punishable under Section

324 IPC read with Section 149 IPC, simple imprisonment for six

3 months for the offence punishable under Section 323 read with Section

149 IPC and simple imprisonment for two months for the offence

punishable under Section 447 IPC read with Section 149 IPC. All the

sentences were directed to run concurrently.

9. Currently, all the accused-appellants are on bail. accused No.4

and accused No.10 were granted bail vide order of this Court dated

18.08.2017; accused No.11 was granted bail by order dated

03.04.2017 and the accused Nos.2, 3, 5, 6, 7 and 8 were granted bail

vide order dated 25.10.2010.

10. Succinctly stated, the case of the prosecution is that on

19.11.1999 at about 7:00 a.m. when Md. Baju Mollik (PW-6) had gone

to plough his land, an altercation took place between him and accused

No.11. At that time, the other co-accused armed with falla, jong,

dagger, lathi etc. attacked Md. Baju Mollik. Ekkabar Ali, Md. Samad

Ali (PW-1) and Jonab Ali (PW-4) came to the place of occurrence

whereupon accused No.2 stabbed Ekkabar Ali in the abdomen with a

falla as a result of which Ekkabar Ali became unconscious and

succumbed to his injury shortly thereafter. That accused No.11

stabbed Md. Samad Ali (PW-1) with a falla whereas accused No.8

stabbed PW-1 with a fishing prong. Further, accused No.5 stabbed PW-

4 with a spear. The other accused were present at the place of

occurrence being armed with deadly weapons so that no other person

could come and prevent the commission of the alleged offences.

4

11. An FIR/Ejahar was lodged by Md. Baju Mollik on 19.11.1999 at

about 9:00 a.m. which was registered at Police Station,

Barpeta being Case No. 1022/99 under Sections

147/148/149/447/323/324/307/302 IPC.

12. After investigation by the police, a Charge Sheet was submitted

against the persons accused of the aforesaid offences.

13. The accused appeared before the Court of learned Additional

Chief Judicial Magistrate, Barpeta but as the offence punishable under

Sections 307/302 are triable by court of sessions the learned ADJ

committed the case to the Court of Sessions, Barpeta. The accused

appeared before the Court of Sessions, Barpeta but the case was

transferred to the Fast Track Court, Barpeta for adjudication.

14. Thereafter, the accused appeared before the Fast Track Court

and faced trial. Charges were framed against the accused for the

respective offences and the same were read over and explained to the

accused to which they pleaded ‘not guilty’ and claimed to be tried.

15. The prosecution examined altogether ten witnesses. Thereafter,

statements of the accused under Section 313 of the Code of Criminal

Procedure, 1973 (‘CrPC’, for short) were recorded. All the accused

denied the alleged occurrence and submitted that they were innocent

and had been falsely implicated. The accused also examined two

witnesses in support of their defence.

5

16. The Fast Track Court on considering the evidence on record

came to the following conclusions:

(i) on minutely scrutinizing the evidence of PW-1 and PW-2, it is

noted that the evidence of PW-1 lends support to the evidence

of PW-2. The evidence of PWs-1 and 2 also finds corroboration

with the medical evidence. The presence of these witnesses at

the place of occurrence cannot be doubted. The two are injured

witnesses in the occurrence and they sustained injuries on the

said day. The defence failed to impeach the credibility of these

witnesses in so far as the involvement of accused persons is

concerned and therefore, evidence of PW-1 and PW-2 are

cogent and reliable and the same are trustworthy witnesses.

The ocular evidence of these witnesses found corroboration

with the medical evidence adduced by Dr. D.C. Sarma (PW-7)

and Dr. S.C. Sarma (PW-9).

(ii) no doubt that there are minor variations in the evidence of PW-

6, informant of this case, with the evidence of PWs-1 and 2,

but this witness has clearly implicated accused-Sahed Ali

which finds corroboration from the evidence of PWs-1 and 2.

There is no ground to disbelieve the version of PW-6 as well.

(iii) the evidence of Inam Ali (PW-3) who is a reported witness,

Jonab Ali (PW-4) who sustained injury on his left ring finger

during the incident and Hakim Khan (PW-5) who was not an

6 eye-witness but saw the accused near the place of occurrence,

lends credence to the correctness of the prosecution case.

(iv) the Investigating Officer Biseswar Singha (PW-10) prepared

the sketch/map of the place of occurrence and proved the

same along with his signature. The sketch/map shows that

the place of occurrence is a disputed land. Though, both the

informant and the accused have claimed the land, it transpires

from the evidence of the prosecution that the disputed land

where the incident occurred was in possession of the

complainant’s party. During investigation, PW-10 also seized

the weapon of assault and prepared a seizure list which bears

his signature.

(v) the discrepancies pointed out by the learned counsel for the

defence are trivial in nature and cannot be said to have

destroyed or demolished the case of the prosecution. The

discrepancies are due to normal errors of memory or due to

lapse of time. Further, the evidence of the two defence

witnesses failed to corroborate the plea of alibi taken by the

accused.

(vi) the defence witnesses failed to establish that the persons

accused were not present at the place of occurrence at the time

of the incident and that they did not kill the deceased person.

The reports of the doctor show that the deceased was killed at

7 7 or 8 a.m. and the FIR was lodged promptly. All the accused

were named in the FIR. The parties were known to each other.

Thus, it is proved that all the accused came to the place of

occurrence being armed with deadly weapons such as falla,

lathi, surki, etc. by forming an unlawful assembly. Out of them,

accused Md. Sahed Ali, Md. Jabbar Ali and Md. Hasan Ali

assaulted PW-1 with a blunt object; accused-Md. Yunush Ali

and Md. Tabibor Rahman assaulted PW-2 with a sharp

pointed weapon; accused-Md. Ajmot Ali assaulted PW-4 and

accused Md. Sahed Ali assaulted PW-5. accused-Md. Jabbar

Ali, Md. Sahed Ali and Md. Moyan Ali gave a fatal blow to

Ekkabar Ali as a result of which he died. The weapons used

by the accused were dangerous weapons which clearly

indicate that the accused had an intention to kill Ekkabar Ali.

Thus, all the accused were held guilty and were convicted and

sentenced by the Fast Track Court as has already been

mentioned above.

17. In the criminal appeal filed by the accused before the High Court,

on considering the submissions made on their behalf as well as the

State, the High Court noted as under:

(i) the evidence of PW-1, PW-2 and PW-5 make it clear that to

prevent PW-6 from ploughing the land where the occurrence

took place, the accused had come to the land in question

8 armed with dangerous weapons like lathi, fishing prong, falla

and surki. An assembly of the accused persons (who were more

than five) was formed on the day of occurrence and deposition

of these witnesses make it clear that the persons accused had

intended to take possession of the land on which PW-6 was

ploughing and to prevent him from further ploughing the land.

The prosecution has successfully established formation of an

unlawful assembly with a common object.

(ii) the evidence of PW-1, PW-2, PW-5 and PW-6 make it clear that

when the deceased Ekkabar Ali tried to intervene in the

matter, injuries were caused on his abdomen with a sharp

weapon, resulting in his death and the same were caused at

the instance of accused-Md. Sahed Ali. The causing of injuries

was in furtherance of the common object of unlawful assembly

formed by the accused persons. While it is correct that the

evidence of the witnesses are at variance as regards which one

of the accused had inflicted injury on the abdomen of the

deceased, the said fact will not be very relevant if liability is

otherwise attributable by virtue of the provisions of Section

149 of the IPC. Thus, it was held that Md. Jabbar Ali, Md.

Sahed Ali and Md. Moyan Ali, being members of an unlawful

assembly were liable for causing the death of (deceased)

Ekkabar Ali.

9

(iii) it is an established principle of law that evidence tendered by

different prosecution witnesses have to be considered as a

whole and such evidence cannot be put in different

compartments and considered separately. The appreciation

must be of the totality of the evidence brought on record by

different witnesses. While it is correct that PW-6 had

implicated only four of the accused persons, the evidence of

the said witness cannot be construed to be another version of

the prosecution case. The evidence of PW-6 is supplementary

and not in derogation of the evidence of other prosecution

witnesses examined in the present case.

(iv) the injuries suffered by PW-1, PW-2, PW-4 and PW-5 are fully

corroborated by the evidence of PW-7 and PW-9 as well as the

reports of the injuries exhibited by the prosecution witnesses.

(v) the evidence of PW-10 established that PW-6 had given the

land for cultivation on ‘adhi’ basis and that the accused

person’s right to possess the land is also not established.

(vi) there was no fault with the conviction and sentence of the

accused passed by the Fast Track Court under Section 447 of

IPC read with Section 149 of IPC. That when all the persons

accused in the instant case had formed an unlawful assembly

and the death of Ekkabar Ali was on account of injuries

caused by some members of the unlawful assembly, the Fast

10 Track Court convicted only three out of eleven accused under

Section 302 of IPC read with Section 149 of IPC and the others

were acquitted of the said charges. That the reason for such

acquittal was not clear, however, since the acquittal of the said

accused was not challenged, the High Court refrained from

getting further into the said question.

(vii) the judgment and sentence passed by the Fast Track Court in

respect of each person accused was thus upheld and affirmed

wholly.

18. We have heard Sri Raj Kishor Choudhary, learned counsel for the

appellants-accused and Sri Shuvodeep Roy, learned counsel for the

respondent-State and perused the material on record.

19. Learned counsel for the appellants submitted that the High Court

was not right in confirming the judgment of conviction and sentence

passed by the Fast Track Court. The counsel for appellants further

contended that the impugned judgments of the Courts suffer from legal

as well as factual infirmities and the findings therein are perverse and

are to be set-aside and the appellants are liable to be acquitted.

20. The details of the submissions put forth by the learned counsel

for the appellants-accused can be epitomised as under:

20.1 there was no evidence to show any alleged unlawful assembly,

rioting, murder and all the alleged offences have been falsely

fabricated by the Investigating Officer-Biseswar Singha (PW-10).

11

The case of the appellants is that they were neither present nor

participated in the alleged occurrence.

20.2 the investigation by PW-10 was not done as required by law. It

was urged by the counsel for the appellants that the prosecution

stated that 100 to 150 people gathered at the place of

occurrence. However, the prosecution failed to examine any

independent and impartial witness. The witnesses examined

were under the influence of PW-10 who falsely implicated the

appellants. Further, the witnesses, PW-1 to PW-6, who were

examined by the prosecution, were related to each other. There

are material contradictions in the contents of the FIR and

depositions made by the witnesses. The charge sheet submitted

by PW-10 did not bear his signatures. The land documents of

the appellants were not verified by PW-10 as the same was

essential to do so. PW-10 has been negligent in performing his

duty and did not carry out the investigation in a proper manner.

20.3 the Courts below failed to note that dispute pertained only

regarding land and the ingredients of offence under Section 149

of the IPC were not made out and, as such, the conviction was

bad in law. Since the offence under Section 149 of the IPC was

not made out, accused Nos. 4, 10 and 11 could not have been

convicted under Section 302 of the IPC. There is no clear version

as to who gave the fatal blow to the deceased.

12 20.4 the Courts below ought to have considered the cardinal principle

of the administration of criminal justice i.e., presumption of

innocence of the accused. In the present case, nothing was

proved beyond reasonable doubt and the Courts below were not

justified in depriving the accused persons of the benefit of doubt.

21. Per contra, learned counsel appearing for the respondent-State

supported the impugned judgment and order passed by the High Court

and the Fast Track Court and contended that the Courts below have

rightly perceived and assessed the evidence on record.

22. The submissions of the learned counsel for the respondent-State

can be summarised as under:

22.1 the present case is a case of clinching evidence and the

involvement of the accused in the offence has been proven

beyond reasonable doubt by the prosecution on the strength of

the depositions of injured eye-witnesses being PW-1, PW-2, PW-

4 and PW-5 which has been corroborated by medical evidence

duly proved on record.

22.2 both the Courts below have concurrently held that the minor

discrepancies in the deposition of PW-6 does not

demolish/destroy the consistent depositions of PW-1, PW-2, and

PW-5. The same is actually supplementary and not in derogation

of the evidence of other prosecution witnesses. The discrepancy

regarding who stabbed the deceased does not negate the value

13 of the testimonies of PW-1 and PW-2 as it does not go to the root

of the matter. As long as the evidence contains a ring of truth, it

cannot be discarded on account of existence of discrepancies.

The learned counsel for respondent-State contended that this

Court has settled the principles relating to treatment of evidence

when discrepancies are alleged and relied on the judgments of

this Court in (i) Sohrab v. State of Madhya Pradesh (1972) 3

SCC 751, (ii) Bharwada Bhoginbhai Hirjibhai v. State of

Gujarat (1983) 3 SCC 217, (iii) State of U.P. v. M.K. Anthony

(1985) 1 SCC 505, (iv) Prithu @ Prithi Chand v. State of

Himachal Pradesh (2009) 11 SCC 588 and (v) State of

Madhya Pradesh v. Chhaakki Lal (2019) 12 SCC 326.

22.3 the plea of alibi as claimed by the accused has not been

sufficiently proven by the defence. It was contended by the

learned counsel for the State that in respect of plea of alibi,

Section 11 and Section 103 of the Evidence Act, 1872 are

relevant. Further, the plea of alibi must be proved with absolute

certainty so as to completely exclude the possibility of the

presence of the person concerned at the place of occurrence.

Neither DW-1 nor DW-2 confirmed the presence of accused Md.

Sahed Ali in his house or the alleged incident of dacoity at his

alibi. The alibi is weak and does not create a contradiction to the

facts presented by the prosecution. Learned counsel for the

14 respondent-State placed reliance on Dudh Nath Pandey v.

State of Uttar (1981) 2 SCC 166, Jitender Kumar v. State of

Haryana (2012) 6 SCC 204 and State of Maharashtra v.

Narsingrao Gangaram Pimple (1984) 1 SCC 446.

23. Having heard the learned counsel appearing for the respective

parties, the following points would arise for our consideration:

(a) Whether the High Court was justified in confirming the judgment

of conviction and sentence awarded to the appellants-accused by

the Fast Track Court?

(b) Whether the judgment of the High Court calls for any interference

or modification by this Court?

(c) What order?

24. Before proceeding further, it would be useful to recall the

approach to be adopted while deciding an appeal against conviction by

the Trial Court as well as by the High Court.

25. Section 374 of the CrPC deals with appeals from convictions.

Though it is a settled law that this Court shall not reassess the evidence

at large and come to fresh opinion as to the innocence or guilt of the

accused so as to interfere with the concurrent findings of the Courts

below, however this Court may interfere in certain cases. One such

case is when there has been an improper reception or rejection of

evidence, which, if discarded or received would leave the conviction

unsupportable. This Court may also interfere in a case where there has

15 been a misreading of vital evidence or the Court omits to notice the

important points in favour of the accused. {See Saravanabhavan v.

State of Madras AIR 1966 SC 1273}

26. Where the finding of fact by the High Court is perverse,

inadequate and had resulted in miscarriage of justice, this Court may

itself hear the appeal on the evidence instead of remanding the case to

the High Court for a reconsideration of the evidence when the latter

course would lead to unnecessary delay or hardship. {Kashmira

Singh v. State of Madhya Pradesh AIR 1952 SC 159}

27. In order to appreciate the arguments advanced by the learned

counsel for the rival parties and to determine the correctness of the

conclusions recorded in the judgments passed by the High Court and

the Fast Track Court, it will be necessary to discuss the evidence

adduced by the witnesses examined by the prosecution as well as the

defence.

28. PW-1- Md. Samad Ali, is one of the persons allegedly injured in

the occurrence. The deceased Ekkabar Ali was his cousin (paternal

uncle’s son). According to him, at about 7:00 a.m. on the day of

occurrence, PW-6 had gone to plough his field when Md. Sahed Ali took

the other accused persons to the field of PW-6. Seeing the persons

accused go to the field of PW-6, PW-1 along with the deceased Ekkabar

Ali, PW-2 and PW-3 also came to the field. As per this witness, Md.

Sahed Ali exhorted the rest of the accused to assault the other persons

16 whereupon accused Md. Ajmat Ali stuck PW-1 in the left arm with a

fishing prong whereas accused Md. Hasan Ali tried to stab him in the

abdomen with a falla, as a result of which he sustained injury in his

left hand. This witness further deposed that Md. Jabbar Ali stabbed

the deceased Ekabbar Ali in the lower abdomen with a surki (spear)

whereupon the deceased fell down. PW-1 also deposed that injuries

were caused to PW-2 and PW-4 and that injured Ekkabar Ali was taken

to the house of Barek Bepari where he died. In his cross examination,

PW-1 stated that his house is situated at a distance of half a kilometer

from the place of occurrence and that Md. Sahed Ali had forcibly taken

possession of the land on which the occurrence took place. PW-1 stated

that PW-6 is the husband of his niece. PW-1, in his cross examination,

further stated that the police did not interrogate him at the place of

occurrence. He further stated that some 15-20 people were present at

the place of occurrence and that PW-6 was ploughing Md. Sahed Ali’s

land. The quarrel took place when Md. Sahed Ali objected to the said

act of ploughing his field. PW-1 stated that he did not tell the police

about Mr. Jabbar Ali stabbing him in the arm and that Md. Ajmot Ali

did it. As per his statement in the cross-examination, he did not tell

the police that Md. Tabibor Rahman stabbed him in the right arm. PW-

1 stated that he did not tell the police about Md. Jabbar Ali stabbing

Ekkabar Ali since the police did not ask him. In his cross-examination,

PW-1 stated that it was only when Ekkabar Ali’s body was taken from

17 the place of occurrence that he came to know about Md. Jabbar Ali

stabbing Ekkabar Ali. PW-1 further refused that he had any land near

PW-6’s land or Md. Sahed Ali’s land.

29. PW-2- Md. Baseruddin is another witness who got injured in the

course of the occurrence who has stated that deceased Ekkabar Ali was

his paternal uncle and that at about 7:00 a.m. while walking on the

road, he heard a hue and cry at the place of occurrence. When PW-2

reached the spot of occurrence, he found all the accused persons

present with lathi, falla, hanna, surki etc. and the accused persons were

quarrelling with PW-6 over ploughing the land. PW-2 deposed that he

had requested the parties not to quarrel. He deposed that at the time

of incident, Md. Sahed Ali exhorted the other accused to stab PW-2.

The deceased Ekkabar Ali was infront of him and that Md. Moyan Ali

caught hold of Ekkabar Ali while accused Md. Jabbar Ali stabbed

Ekkabar Ali in the lower abdomen with a surki. He deposed that

accused Md. Yunush Ali hit him on the upper dorsal side of his right

hand with a faska whereas accused Md. Tabibor Rahman had struck

him with a falla on the upper dorsal side of his left hand. By seeing this

he fled away from the place of occurrence. The accused Md. Ajmot Ali

and Md. Hasan Ali injured PW-1 on his hand and arm. That Ekkabar

Ali was carried to the house of Barek Bepari where he died and that he

underwent treatment for his injuries. In his cross-examination, the

place of occurrence of the incident belonged to one Rezzak Ali and that

18 the patta is in his name. He stated that he had no knowledge whether

the name of accused Md. Sahed Ali was mutated in the patta or not.

He rushed to the place of occurrence after 10-15 minutes wherein 50-

60 people gathered there. PW-2 stated Ekkabar Ali sustained injury in

the right side of his lower abdomen and that he sustained only one

injury. PW-2 further stated in his cross-examination that he did not

know if the people were aware of this incident.

30. PW-3-Md. Inam Ali is the brother of deceased Ekkabar Ali who

deposed that at about 7:00 a.m. on the day of occurrence, when he had

been ploughing the field, a young boy came and informed him of the

incident. He deposed that he went to the place of occurrence and found

his elder brother Ekkabar Ali lying dead. According to him, PW-4

informed him that Md. Moyan Ali had killed Ekkabar Ali and further

that PW-4 and PW-1 were injured by Md. Ajmot Ali. Immediately, on

his arrival at the place of occurrence, the accused persons ran away

from there. In his cross-examination, PW-3 stated that the land on

which occurrence took place is an annual patta land and that he did

not know the dag and patta numbers of the land. He refused that he

knew the boundaries of the land. He stated that he had also seen some

Moslem ploughing the field on which incident took place and that he

had been ploughing his land which some 2-3 bighas away from the

place of occurrence. On his arrival on the place of occurrence, he did

not notice who were present there and that the accused persons ran

19 away. The accused persons have separate homesteads. PW-3, in his

cross-examination further stated he told the police that PW-4 told him

that Md. Moyan Ali assaulted Ekkabar Ali. The two parties fought over

possession of land and that on the day of occurrence itself, Md. Sahed

Ali filed a case against them (Jonab, Raju Mallik and Baser) alleging

looting of his house

31. PW-4-Md. Jonab Ali is another brother of the deceased. He

deposed that at about 7:00 a.m. on the day of occurrence, he was

ploughing his land which is at a short distance from the place of

occurrence. Seeing 100-150 people gathered at the place of occurrence,

he went to the place of occurrence. Md. Ajmot Ali tried to hit him with

a faska, as a result of which, he fell on the ground and on standing up

he saw 4-5 men carrying Ekkabar Ali. He also saw injury on the

abdomen of Ekkabar Ali who, according to him, was assaulted by Md.

Hasan Ali. In his cross-examination, he stated that deceased Ekkabar

Ali and PW-6 had a quarrel over possession of the land. He did not see

injury on anyone at the place of occurrence except for on Ekkabar Ali.

As per this witness, PW-2 came to the place of occurrence afterwards.

He did not know the name of the persons who told him that Md. Hasan

Ali had assaulted Ekkabar Ali and that he did not tell that to the police.

In his cross-examination, PW-4 makes a mention of some other quarrel

that took place between the two groups at some place 10-15 bighas

away from Md. Sabed Ali’s house. He also made a mention of the case

20 filed against them alleging dacoity being committed by them in Md.

Sabed Ali’s house. In his cross-examination, PW-4 stated that he

cannot say if the accused persons were present at the place of

occurrence. PW-1 and PW-3 are his brothers and PW-6 is the husband

of his niece.

32. PW-5- Md. Hakim Khan, who is the brother-in-law of deceased

Ekkabar Ali, in his deposition stated that at about 8:00 a.m. on the day

of occurrence, he was going home on a bicycle after purchasing some

fertilizer. As per this witness, Md. Sahed Ali, Md. Tabibur Rahman, Md.

Sabed Ali, Mustt. Chanderbhanu, Mustt. Hazarabhanu and Md. Yunus

Ali came together towards him and said ‘Ekkabar Ali’ is finished. Catch

this one’. According to him, Md. Sahed Ali hit him on his right shoulder

with a lathi, as a result of which, he fell down and became unconscious

and was taken to the hospital by his eldest son Anowar Khan, son-in-

law and his wife. PW-5 stated that Ekkabar Ali sustained injuries in

his right kidney. In his cross-examination, this witness stated that he

was attacked and injured near the house of one Jittu Ali at Keotpara.

The incidents of assault took place at two places. the distance between

the places where he was attacked and Ekkabar Ali was killed is one

furlong. This witness stated that he did not know what the rest of the

accused persons had done other than running towards him and

attacking him. The cause of quarrel was unknown to him. In his cross-

21 examination, this witness stated that he did not tell the police about

the accused persons assaulting Ekkabar Ali.

33. PW-6- Baju Mollik, the first informant, deposed that on the

morning of the day of occurrence, at about 7:00 a.m. when he was

ploughing his land, the accused, namely, Md. Sahed Ali, Md. Sabed Ali,

Mustt. Hazerabhanu and Mustt. Chandrabhanu came to the land and

asked him not to plough the same. An argument took place over the

said issue. As per this witness, at that time, deceased Ekkabar Ali was

going along the road to his place of work. PW-6 called Ekkabar Ali to

his land and the latter asked the accused persons not to quarrel with

PW-6. PW-6 deposed that at that time, Md. Sahed Ali ordered that

Ekkabar Ali should be assaulted and therefore Md. Sabed Ali, Mustt.

Hazerabhanu and Mustt. Chandrabhanu held Ekkabar Ali tightly while

Md. Sahed Ali stabbed him in the abdomen with a falla. As per his

deposition, there was an attempt to assault him also but he ran away.

While running away, he met PW-4 and informed him of the incident.

PW-6 also informed the villagers regarding the said incident and on

returning to the place of occurrence, he found Ekkabar Ali lying in the

field in an injured state. In his cross-examination, he stated that he

was ploughing was his own land however he did not know the dag and

patta of his own land. He stated that he had seen only accused Md.

Sahed Ali, Md. Sabed Ali, Mustt. Hazerabhanu and Mustt.

Chandrabhanu and none others at the place of occurrence and he

22 informed the same to PW-4 when he was running away. After 10-15

minutes, he returned to the place of occurrence and saw only aforesaid

4 accused persons and no other person. He stated that there was only

Ekkabar Ali and him on the place of occurrence. He also deposed in his

cross examination that he did not know if any other man sustained

injuries. He stated that Md. Sayed Ali had asked him not to plough the

field. The said land was given to him by his maternal uncle Md. Rezzak

Ali however he has not obtained mutation in that respect. This witness

stated he did not tell the police about accused Md. Sayed Ali stabbing

PW-1 with a falla. According to him, PW-1 held it with his hand and as

a result of that, he sustained injury in the hand. He also stated that he

did not tell the police that Md. Yunus Ali had injured PW-2 and that

Md. Hasan Ali injured Ekkabar Ali. He did not know of any incident

happening near Md. Sayed Ali’s house. He denied that the land where

the incident took place belonged to Md. Sahed Ali. He even stated in

his cross-examination that he cannot say as to who assaulted whom.

This witness also deposed in his cross-examination that the deceased

Ekkabar Ali was his maternal uncle-in-law.

34. PW-7- Dr. D.C. Sarma who was working in Barpeta Civil Hospital,

deposed that on 19.11.1999, he examined PW-1, PW-4 and PW-5. The

report was prepared and signed by PW-7 and was exhibited by the

prosecution as Ext.2,4, and 3 respectively. The injuries as mentioned

23 in the injury reports were simple and were found to be caused by a

blunt weapon.

35. PW-8- Dr. P.N. Uzir conducted post-mortem examination on the

dead body of Ekkabar Ali. The post-mortem report Ext.5 indicated that

one stab injury was found on the left side of the lower abdomen and

that the rupture of the peritoneum was found along with perforation of

the large intestine. As per the opinion of the doctor, the cause of death

was shock and haemorrhage due to the injury sustained. Only one

injury was found on the body of the deceased. In his report, he stated

that the injury might have been caused by a sharp weapon.

36. PW-9-Dr. S.C. Sarma had examined PW-2 at Barpeta Civil

Hospital on 19.11.1999 and in his report, Ext.6, it was mentioned that

he found two small punctured injuries at the dorsal of the right hand.

The injuries were simple and caused by pointed weapon.

37. PW-10-Biseswar Singha is the Investigating Officer in the instant

case who deposed that PW-6 lodged a written Ejahar. He stated that he

registered the complaint, interrogated the complainant, visited the

place of occurrence, questioned the witnesses and drew a sketch/map-

Ext.7 of the place of occurrence along with his signature- Ext.7(i). He

deposed that he seized a 10 feet 7 inches bamboo pole fitted with 9

inches long pointed iron prong, 9 inches long iron falla fitted to a 2 feet

11 inches long bamboo pole and an 11 feet 2.5 inches long bamboo

pole fitted with 14-inch-long pointed iron falla vide seizure list- Ext.9

24 along with his signature- Ext.9(i). Ext.10 (1) is the signature of

Inspector Tanu Hazarika. As per this witness, he sent the body of the

deceased Ekkabar Ali to the Barpeta Civil Hospital for autopsy and on

completion of the investigation, he submitted a chargesheet against the

accused. In his cross-examination, he stated that the incident took

place on Muslimuddin’s land and that he did not verify the land

documents of PW-6 i.e., the first informant and of the accused persons.

In the diary, there is no mention that the accused Sayed Ali’s house

was ransacked. The chargesheet did not bear his signature. In his

cross-examination, PW-10 stated that he did not see the articles seized

by him in the court on the day of his deposition. He further stated that

he did not examine Anowar Khan as a witness. PW-10 stated that PW-

6 and PW-4 told him about the incident.

38. The accused examined two witnesses. DW-1- Phul Khatun in his

examination-in-chief, deposed that a quarrel took place in the house of

Md. Sahed Ali, over some land, about 4-5 years ago. DW-1 however

stated that she could not say whether at the time of occurrence, Md.

Sahed Ali was present or not. DW-1 stated that she had not seen the

occurrence of the incident. In her cross-examination, DW-1 deposed

that she was not present at the time of the occurrence.

39. DW-2- Md. Abu Ahmed, in his witness, deposed that on coming

to know of the arrival of the police at the place of occurrence, he had

gone there and found the dead body of Ekkabar Ali lying in the

25 courtyard of the house of Barek Bepari. In his cross-examination, this

witness stated that he was not present at the time when deceased

Ekkabar Ali was killed.

40. On reappreciation of evidence of the prosecution witnesses, it is

noted that PW-1 who is one of the injured witnesses has stated that on

the fateful day, it was Md. Sahed Ali who exhorted the other accused

to assault and as a result of the said exhortation Md. Jabbar Ali

stabbed Ekkabar Ali in the in the lower abdomen with surki (spear)

whereupon the deceased fell down. PW-2 has also stated that Md.

Moyan Ali caught hold of Ekkabar Ali while accused Md. Jabbar Ali

stabbed Ekkabar Ali in the lower abdomen with a surki. That Md.

Yunsh Ali hit him on the upper dorsal side of his right hand with a falla

and Md. Tabibur Rahman had struck him with a falla on the upper

dorsal side of his left hand. As a result, he fled from the place of

occurrence. PW-3-Md. Inam Ali is not eye witness but on information

has deposed that he went to the place of occurrence of the incident and

found Ekkabar Ali lying dead. According to this witness who is a

hearsay witness, PW-4 informed him that Md. Moyan Ali had killed

Ekkabar Ali. PW-4 further stated in his evidence that he saw the

injuries on the abdomen of Ekkabar Ali who, according to him, was

assaulted by Md. Hasan Ali. But he has not stated that he had seen

Md. Hasan Ali assaulting Ekkabar Ali. Also, PW-5-Md. Hakim Khan

has deposed that Md. Sahed Ali hit him on his right shoulder with a

26 lathi and as a result he fell down and became unconscious and was

taken to the hospital. He has also not stated as to who assaulted

Ekkabar Ali. Similarly, PW-6-Baju Mollik, the first informant has

stated that on the exhortation of Md. Sahed Ali, Md. Sabed Ali, Mustt.

Hazerabhanu and Mustt. Chandrabhanu held Ekkabar Ali tightly while

Md. Sahed Ali stabbed him in the abdomen with a falla and as there

was an attempt to assault him also, he ran away. While running away,

he met PW-4 and informed him of the incident. Thus, PW-4 is also not

an eye witness of the incident as they were not present at the time when

Ekkabar Ali was assaulted.

41. On an analysis of the evidence produced by both the parties, what

emerges is that there are variations in the evidence of PW-6 who was

the first informant in the instant case and the evidence of PW-1, PW-2

and PW-4 regarding as to who gave the fatal blows to deceased Ekkabar

Ali. As per the deposition of PW-6, accused Md. Sahed Ali stabbed the

deceased Ekkabar Ali in the abdomen with a falla while as per the

deposition of PW-1 and PW-2, accused Md. Jabbar Ali stabbed Ekkabar

Ali in the lower abdomen with a surki, whereafter he fell on the ground

and was later taken to house of Barek Bepari where he succumbed to

his injuries. But, PW-1 has admitted in his cross examination that he

had not told the police about Md. Jabbar Ali stabbing Ekkabar Ali and

when the latter’s body was being taken from the place of the

occurrence, he came to know that Md. Jabbar Ali had stabbed Ekkabar

27 Ali. PW-4 deposed that Md. Moyan Ali had killed Ekkabar Ali. From the

evidence of the witnesses, what emerges is that there is no consistency

in the depositions of the aforesaid witnesses as to who amongst the

accused persons gave a fatal blow to the deceased Ekkabar Ali. When

it is not clear as to who stabbed the deceased Ekkabar Ali, the finding

of the Fast Track Court, that the evidence of PW-6 finds corroboration

with the evidence of PW-1 and PW-2 is erroneous and cannot be

sustained. The Fast Track Court as well as the High Court ought not

to have relied on the evidence of these witnesses which are highly

inconsistent with each other in holding the concerned accused guilty.

42. The evidence of PW-3, who was the brother of the deceased, also

does not support the case of the prosecution since PW-3 was not an

eye-witness but was merely a hearsay witness who, in his deposition,

categorically stated that while he was ploughing his field, a young boy

came and informed him about the incident. After hearing about the

incident, this witness rushed to the place of occurrence and saw the

dead body of the deceased Ekkabar Ali. Further, in his deposition, PW-

3 also stated that he was informed by PW-4 that accused Md. Moyan

Ali stabbed the deceased Ekkabar Ali and that PW-1 and PW-4 were

further injured by the accused Md. Ajmot Ali. On examining the

deposition of this witness PW-3, it is clear that the same is not

corroborated by the evidence of any other witness such as PW-1 and

PW-2 who stated that accused Md. Jabbar Ali stabbed the deceased

28 Ekkabar Ali and PW-6 who stated that accused Md. Sahed Ali stabbed

the deceased Ekkabar Ali. The finding of the Fast Track Court that the

evidence of PW-3 lends support to the correctness of the prosecution

case is therefore incorrect. Thus, the evidence of PW-3 in no way lends

succor to the case of the prosecution.

43. Moving on to the evidence of PW-4, who is also alleged to be

injured in the said incident was also not an eye-witness to the

occurrence. As per his own deposition, he went to the place of

occurrence after he saw many people gathered there. According to this

witness, accused Md. Hasan Ali assaulted the deceased Ekkabar Ali,

however, during his cross-examination, he clearly stated that he did

not know as to who told him that accused Md. Hasan Ali stabbed the

deceased Ekkabar Ali.

44. Further, PW-5 was also not an eye-witness to the incident of

deceased Ekkabar Ali being killed by the accused persons. According

to this witness, the accused persons Md. Sahed Ali, Md. Sabed Ali,

Mustt. Chandabhanu, Mustt. Hazerabhanu and Md. Yunush Ali came

towards him and told that they had killed the deceased Ekkabar Ali.

However, this witness has failed to state which one of the accused

persons actually stabbed the deceased Ekkabar Ali. The evidence of

PW-5 thus, does not lend any credence to the case of the prosecution.

45. On scrutinizing the evidence of PW-10 i.e., the Investigating

Officer, it is clear that PW-10 did not verify the land documents/land

29 records of PW-6 as well as of the persons accused. The Fast Track

Court has held that on the relevant day i.e., on the day of the incident,

PW-6 was cultivating the land however the accused Md. Sahed Ali also

claimed to be owner of the land. Also, witness PW-10 did not collect the

blood stains from the place of occurrence.

46. Hence, we find there is no clinching evidence so as to prove

beyond reasonable doubt the case of the prosecution as there are

contradictions in the evidence/depositions of PW-1, PW-2 and PW-5.

Moreover, the evidence of PW-6, the informant is inconsistent with the

depositions of PW-1, PW-2 and PW-5. We find that the inherent

contradictions in the evidence of the prosecution-witnesses does not

prove the case of the prosecution beyond reasonable doubt. Therefore,

the evidence of the defence witnesses in relation to the alibi of Md.

Sahed Ali need not be considered as such.

47. It is pertinent to mention here that the finding of the High Court

as well as of the Fast Track Court is erroneous since no document was

brought on record to prove the possession or the ownership of the said

disputed land. The Fast Track Court arrived at a conclusion that the

disputed land where the occurrence took place was in possession of

the complainant’s party on mere conjectures. Hence, we express no

opinion on that aspect of the case.

48. It is noted that great weight has been attached to the testimonies

of the witnesses in the instant case. Having regard to the aforesaid fact

30 that this Court has examined the credibility of the witnesses to rule out

any tainted evidence given in the court of Law. It was contended by

learned counsel for the appellant that the prosecution failed to examine

any independent witnesses in the present case and that the witnesses

were related to each other. This Court in a number of cases has had

the opportunity to consider the said aspect of

related/interested/partisan witnesses and the credibility of such

witnesses. This Court is conscious of the well-settled principle that just

because the witnesses are related/interested/partisan witnesses, their

testimonies cannot be disregarded, however, it is also true that when

the witnesses are related/interested, their testimonies have to be

scrutinized with greater care and circumspection. In the case of

Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381,

this Court held that the testimony of such related witnesses should be

analysed with caution for its credibility.

49. In Raju alias Balachandran and Ors. v. State of Tamil Nadu

(2012) 12 SCC 701, this Court observed:

“29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369] in the

31 following words: (Sarwan Singh case [(1976) 4 SCC 369, p. 376, para 10) “10. … The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”

50. Further delving on the same issue, it is noted that in the case of

Ganapathi and Anr. v. State of Tamil Nadu (2018) 5 SCC 549, this

Court held that in several cases when only family members are present

at the time of the incident and the case of the prosecution is based only

on their evidence, Courts have to be cautious and meticulously

evaluate the evidence in the process of trial.

51. It is thus settled that the evidence of the related witnesses have

to be considered by applying discerning scrutiny. In the instant case,

it is seen from the testimonies of the prosecution witnesses that all the

witnesses are related to the deceased Ekkabar Ali and therefore all the

witnesses being related to each other. In order to elucidate on the said

aspect, it is pertinent to note the relationship of the witnesses and to

the deceased Ekkabar Ali. PW-1 in his deposition stated that the

deceased Ekkabar Ali was his cousin (paternal uncle’s son) and PW-6

is the husband of his niece. PW-2 stated that the deceased Ekkabar Ali

was his paternal uncle. PW-3 and PW-4 deposed that they were

32 brothers of the deceased. PW-5 was the brother-in-law of the deceased

and PW-6 stated that the deceased was his maternal uncle in law. It is

necessary to state here that the evidence of the related witnesses can

be rejected if there are material contradictions and inconsistencies

found in their testimonies. It is observed that there have been material

improvements in the testimony of PW-1. PW1- in his examination

deposed that accused Md. Jabbar Ali stabbed Ekkabar Ali however in

his cross-examination, PW-1 stated that he had not told the police that

Md. Jabbar Ali stabbed Ekkabar Ali. The same is an improvement in

the testimony which has to be borne in mind.

52. Further as already stated above, all the witnesses have given

contradictory versions as to who gave the fatal blow to deceased

Ekkabar Ali and the same amounts to material contradictions. It is

reiterated that the testimony of PW-6 is inconsistent with the

testimonies of PW-1, PW-2 and PW-5 This Court in the case of State

of Rajasthan v. Kalki & Anr. (1981) 2 SCC 752, distinguished

between the normal discrepancies and material discrepancies. This

Court held that the Courts have to label as to which category a

discrepancy can be categorized. The material discrepancies corrode the

credibility of the prosecution’s case while insignificant discrepancies

do not do so.

53. Keeping in view the aforesaid principle, this Court would hold

that in the present case, there are material discrepancies in the

33 testimonies of the witnesses and the same is fatal to the case of the

prosecution. The prosecution has thus failed to prove the guilt of the

accused-appellants beyond reasonable doubt.

54. In the present case, owing to the substantial and material

contradictions in the testimonies of the prosecution witnesses, the

evidence of the prosecution is considered wholly unreliable.

Additionally, the prosecution has examined only related witnesses and

not a single independent witness. Therefore, in the facts and

circumstances of the case, the evidence does not prove the alleged

offences against the accused-appellants.

55. Another aspect that this Court would like to look into is as to

what extent this Court can reappreciate and reappraise the evidence

on record. In a catena of cases, it has been held that though in cases

of concurrent findings of fact, this Court will ordinarily not interfere

with the said findings, this Court is empowered to do so if in case it

finds inter alia, misreading of the evidence or where the conclusions of

the High Court are manifestly perverse.

56. Reliance in this regard is placed on the recent judgment of this

Court in Ashoksinh Jayendrasinh v. State of Gujarat (2019) 6 SCC

535, wherein it has categorically held that when the High Court has

failed to appreciate the oral evidence, it would definitely be entitled to

appreciate the evidence in its correct perspective. In the present case

at hand as well, the finding of conviction was recorded overlooking the

34 material contradictions in the evidence of the prosecution witnesses

and therefore the said conviction deserves to be set-aside. The relevant

portion from the aforesaid judgment is quoted as:

“We are conscious that the Supreme Court would be slow to interfere with the concurrent findings of the courts below. In an appeal under Article 136 of the Constitution of India, concurrent findings of fact cannot be interfered with unless shown to be perverse (vide Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141: (2009) 4 SCC (Civ) 468]). Where the appreciation of evidence is erroneous, the Supreme Court would certainly appreciate the evidence. In our considered view, the High Court ought to have weighed and considered the materials. When the findings of the trial court and the High Court are shown to be perverse and there is no proper appreciation of evidence qua the appellant, the Supreme Court would certainly interfere with the findings of fact recorded by the High Court and the trial court.”

57. It is further noted that the injuries caused to PW-1, PW-2, PW-4

and PW-5 are simple in nature as per the medical reports submitted

by PW-7 and PW-9. The witnesses PW-7 and PW-9 have categorically

stated in their reports that the injuries were caused by a blunt weapon

and therefore the High Court and the Fast Track Court has grossly

erred in convicting and sentencing the accused Nos. 1, 2, 3, 5, 6, 7 and

8 for simple imprisonment for one year.

58. In our view, the High Court as well as the Trial Court have failed

to take into consideration, the vital discrepancies and inconsistencies

35 in the evidence of the prosecution witnesses and therefore the High

Court was not justified in reaffirming the judgment and order of

conviction passed by the Fast Track Court.

59. Having re-appreciated the evidence of the witnesses, we find that

the High Court was not justified in affirming the judgment of conviction

and sentence passed by the Fast Track Court, of the first three

appellants herein, namely, Md. Jabbar Ali (accused no.4), Md. Moyan

Ali (accused no.10) and Md. Sahed Ali (accused no.11) to undergo life

imprisonment and of the other appellants namely Md. Omar Ali

(accused no.3), Md. Hasan Ali (accused no.2), Mustt. Hazerabhanu

(accused no.6), Mustt. Chandrabhanu (accused no.7), Md. Tabibor

Rahman (accused no.5) and Md. Ajmot Ali (accused no.8- appellant in

the connected matter) to undergo simple imprisonment for one year.

60. In view of the aforesaid discussion, we find that the Session Court

as well as the High Court were not right in convicting and sentencing

the appellants herein and therefore, the impugned judgments are liable

to be set aside.

61. In the result, the appeals filed by the appellants-accused are

allowed and the impugned judgments passed by the High Court

affirming the conviction and sentence by the Fast Track Court are

hereby quashed and set aside. The appellants are acquitted of all the

charges levelled against them in the instant case.

36

62. Pending application(s), if any, shall stand disposed of in the above

terms.

.………….……………J. (AJAY RASTOGI)

.………….……………J. (B.V. NAGARATHNA)

NEW DELHI;

17th October, 2022.

37