Md. Rojali Ali & Ors. vs The State of Assam, Ministry of Home Affairs through the Secretary

Md. Rojali Ali & Ors. .....Appellants

Versus

The State of Assam , .....Respondent Ministry of Home Affairs through the Secretary

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

In this most unfortunate and beastly incident, four persons

fast asleep in their home in the early hours of the morning,

oblivious to their imminent fate, were mercilessly murdered in a

barbaric manner by the armed accused, without any instigation Signature Not Verified Digitally signed by

or provocation.

VISHAL ANAND Date: 2019.02.19 16:25:13 IST Reason: 1

2. Against the concurrent judgments of conviction and

sentence dated 29.04.2006 passed by the Additional Sessions

Judge, Barpeta in Sessions Case No. 68/2001 and the judgment

dated 5.3.2010 passed in Criminal Appeal No. 121 of 2006

passed by the Gauhati High Court, this appeal is presented by

the convicted accused.

3. The case of the prosecution in brief is that 26 persons

including the appellants herein, armed with deadly weapons like

spears, arrows, lathis etc. surrounded the house of Md. Aziz Ali,

Md. Kutub Ali, Md. Mamud Ali and Samir Ali at about 6.00 a.m.

on 9.11.1995 and trespassed into their house, dragged them

outside and then assaulted them. As a result of this, Md. Aziz Ali,

Md. Kutub Ali, Md. Mamud Ali and Samir Ali (not mentioned as

deceased in FIR) succumbed to the injuries sustained by them

and one Md. Atar Ali was injured. Though 26 persons were

arrayed as accused in the first information, the chargesheet came

to be filed against 15 persons. During the course of the trial, one

of the accused died, and two others absconded. Thus, the trial

was held against 12 accused, 8 of whom are the appellants

herein. The Trial Court after following due procedure convicted

the appellants under Sections 148, 323 and 302 read with 149 of

2 the Indian Penal Code (for short, “the IPC”), and acquitted the

other accused. The judgment of the Trial Court came to be

confirmed by the High Court. Hence, the convicted accused are

in appeal before us.

4. Shri Raj Kishore Chaudhary, appearing on behalf of the

appellants, took us through the material on record, and

contended that though there are six eye­witnesses to the incident

in question, all these eye­witnesses are closely related to the

family of the deceased. It was also contended that the motive for

commission of the offence is very weak, only being to the effect

that on the day before the incident, a minor quarrel took place

between the parties because the bicycles of PW1, Md. Hanif Ali

and accused Md. Saifuddin (absconding) collided with each other.

Thus, according to the appellants, there was no intention on their

part to commit the murder of the four deceased, and moreover

that no weapons were recovered from them. It was further

contended that the prosecution witnesses have suppressed the

death of one Turen Ali, who was part of the group of the accused,

and whose death occurred during the course of the same

incident. In the same incident, six persons from the group of the

accused were also injured. Thus according to the learned

3 Counsel for the appellants, the prosecution witnesses have not

come before the Court with clean hands, inasmuch as they

suppressed the origin and genesis of the incident.

Per contra, the advocate for the State argued in support of

the judgment of the courts below.

5. It is not in dispute that in the case at hand, four persons

have died viz., Md. Aziz Ali, Md. Kutub Ali, Md. Mamud Ali and

Samir Ali, and that PW7 Atar Ali was injured in the same

incident. The incident took place at about 6.00 a.m. on 9.11.1995

and the first information came to be registered at 8.30 a.m. on

the same day. A counter first information was filed by one

Promila Begum, wife of Turen Ali (deceased belonging to the

group of the accused) on 11.11.1995 i.e. two days after the date

of the incident in question. In the said counter case, the trial

went on separately in respect of the death of Turen Ali and the

injuries sustained by the other six persons (accused herein).

Thus, there were cases and counter cases related to the incident

in question. Since the case at hand has to be dealt with on the

basis of the material on record on its own merit, we do not

propose to make any comment in respect of the counter case.

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6. As mentioned supra, there are several eye­witnesses, viz.,

PWs 1, 2, 3, 7, 8 and 9, and among them PW7 is the injured eye­

witness. It is also not in dispute that they are inter se closely

related to the deceased. PW5 and PW6 are the doctors who

conducted the post­mortem examinations.

7. In view of the ample ocular evidence on record, the motive

for commission of the offence may not be so significant in this

matter.

8. PW7, the injured eye­witness testified that after hearing a

hue and cry at about 5.00 a.m., he went to his courtyard and

saw all the accused assaulting Md. Aziz Ali, Md. Kutub Ali, Md.

Mamud Ali and Samir Ali. He specified the overt acts of each of

the accused by deposing that Accused No.5 stabbed Aziz Ali with

a spear; Accused No.12 assaulted Samir Ali with a lathi; Accused

No.8 stabbed Samir Ali with a spear; Accused Saif (absconding)

assaulted Kutub Ali using a heavy bamboo stick; Accused No.2

stabbed Kutub Ali with a spear; Accused No.1 and Accused No.9

assaulted Mamud Ali on the chest, etc. He also deposed that he

himself was assaulted by Accused No.3. Though the prosecution

cross­examined PW7 at length, his evidence remained unshaken.

5 Even in the cross­examination, PW7 has reiterated the incident

in question without any blemishes.

9. The evidence of PW7 is fully supported by the evidence of

the other eye­witnesses, i.e., PWs 1, 2, 3, 8 and 9. To satisfy our

conscience, we have gone through the evidence of these witnesses

as well. On examining the same, we find that the Trial Court and

the High Court are justified in observing that these witnesses are

trustworthy and reliable. We do not wish to burden this

judgment by quoting the evidence of all these eye­witnesses,

inasmuch as their evidence has been dealt with in detail by the

Trial Court and the High Court, and the appreciation of the

evidence by the Courts cannot be faulted by us in any manner.

Having considered the evidence of all the eye­witnesses in detail,

suffice it to say that the evidence of all of these eye­witnesses is

consistent with the case of the prosecution with respect to all

material particulars, and is credible and trustworthy. Their

presence on the spot can also not be doubted as they are family

members of the deceased, who could reasonably be expected to

be in their respective houses at the relevant point of time, i.e., the

early hours of the day, when they (as well as the deceased) could

6 be expected to have been asleep, and to be about to wake up and

start their daily routine.

10. As regards the contention that all the eye­witnesses are

close relatives of the deceased, it is by now well­settled that a

related witness cannot be said to be an ‘interested’ witness

merely by virtue of being a relative of the victim. This Court has

elucidated the difference between ‘interested’ and ‘related’

witnesses in a plethora of cases, stating that a witness may be

called interested only when he or she derives some benefit from

the result of a litigation, which in the context of a criminal case

would mean that the witness has a direct or indirect interest in

seeing the accused punished due to prior enmity or other

reasons, and thus has a motive to falsely implicate the accused

(for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC

752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and

Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC

298). Recently, this difference was reiterated in Ganapathi v.

State of Tamil Nadu, (2018) 5 SCC 549, in the following terms,

by referring to the three­Judge bench decision in State of

Rajasthan v. Kalki (supra):

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“14. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be “interested”...”

11. In criminal cases, it is often the case that the offence is

witnessed by a close relative of the victim, whose presence on the

scene of the offence would be natural. The evidence of such a

witness cannot automatically be discarded by labelling the

witness as interested. Indeed, one of the earliest statements with

respect to interested witnesses in criminal cases was made by

this Court in Dalip Singh v. State of Punjab, 1954 SCR 145,

wherein this Court observed:

“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person…”

12. In case of a related witness, the Court may not treat his or

her testimony as inherently tainted, and needs to ensure only

that the evidence is inherently reliable, probable, cogent and

consistent. We may refer to the observations of this Court in

8 Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC

199:

“23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.”

13. In the instant matter, as already discussed above, we find

the testimony of the eye­witnesses to be consistent and reliable,

and therefore reject the contention of the appellants that the

testimony of the eye­witnesses must be disbelieved because they

are close relatives of the deceased and hence interested

witnesses.

14. Furthermore, though the counsel for the appellants tried to

convince the Court with regard to minor discrepancies in the

evidence of the six eye­witnesses with respect to the manner in

which the assault took place, such attempt remains futile and

cannot be accepted, inasmuch as minor variations in the

evidence of the witnesses are bound to occur in a case like the

9 one on hand, wherein a number of accused came in a group and

assaulted a few persons suddenly and mercilessly, out of which a

few died and others sustained injuries. We do not find any major

contradiction in the evidence of the eye­witnesses. Their evidence

is fully supported by the version of the doctors who conducted

the post­mortem examinations.

15. It is relevant to note that PW8 and PW9 have clearly deposed

about the death of Turen Ali, for which the counter case was

lodged. Of course, the other eye­witnesses did not depose about

the same. Since the evidence of the two prosecution witnesses

named above reveals that the accused party had also sustained

injuries and one of them had expired, we do not find any ground

to conclude that the prosecution tried to suppress the origin and

genesis of the incident.

16. The evidence clearly reveals that the accused are the

aggressors who came in a group to the house of deceased,

trespassed into their houses, dragged the deceased out and

mercilessly assaulted the deceased with sharp spears, arrows

and lathis. The incident had taken place at about 6.00 a.m.,

which suggests that all the accused came with the clear intention

to commit the murder of the four persons in the early hours of

10 the day. The accused were armed with deadly weapons and they

came with prior preparation and premeditation. There was no

provocation by the deceased or by the injured. In view of the

same, it cannot be said that there was no intention on the part of

the accused to commit murder.

17. Having regard to the totality of the facts and circumstances

of the case, we find no ground to interfere with the impugned

judgment. Hence, the appeal is hereby dismissed.

..........................................J. (L. Nageswara Rao)

............................................J. (Mohan M. Shantanagoudar)

New Delhi;

February 19, 2019.

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