Dudu Ali & Ors. vs State of Assam

Anima Hazarika, J.—Challenge in these two separate appeals being Criminal Appeal Nos. 229 of 2001 and 346 of 2001, are to the judgment rendered by the learned Sessions Judge, Golaghat on 22.06.2001 in Sessions Case No. 15 of 1999, whereby and whereunder the learned Sessions Judge convicted and sentenced the appellants herein, in both the appeals under Section 302 of the Indian Penal Code (in short IPC) for imprisonment of life and to pay a fine of Rs. 10,000/ each with a defaulting clause. During the pendency of the appeals before this Court, accused Dudu Ali died and therefore, the appeal stood abated so far as Dudu Ali is concerned.

The prosecution story, sans unnecessary details, may be staled as follows:

Golaghat PS Case No. 216/95 under Sections 147/148/149/448/302 IPC was registered by Police on the basis of an Ejahar lodged by one Munna Hussain on 26.05.95 alleging, inter alia, that twelve named accused persons including the present appellants inflicted injuries on the person of informant''s elder brother and mother with dao, spear, etc. and they (the accused persons named in the said Ejahar) killed the informant''s father Jabar Uddin by stabbing him with spear and hacking with dao. On completion of investigation, police submitted chargesheet under Sections 147/148/149/448/302/325 IPC against the 15 accused persons, namely, (i) Mafajul Hussain, (ii) Seikh Mahammad Hussain, (iii) Bubuli Ali, (iv) Akoni Ali, (v) Manik Ali, (vi) Son Ahmed, (vii) Bubu Ali, (viii) Milik Hussain, (ix) Jalil Ahmed, (x) Dudu Ali, (xi) Mokibotddin Ahmed, (xii) Mafijur Ali, (xiii) Samrat Ali, (xvi) Bulu Ali and (xv) Samsul Hussain.

Since the offence under Section 302 IPC is exclusively triable by the Sessions Court, the case was committed to the Court of the learned Sessions Judge, Golaghat, on 04.02.99 by the concerned Magistrate. On receipt of the case records being GR Case No. 497/95 (corresponding Golaghat PS Case No. 216/95). Sessions Case No. 15 of 1999 was registered in the Court of the learned Sessions Judge, Golaghat. The learned Sessions Judge, framed charge with one head under Section 302 IPC against all the 15 accused persons. A separate charge under Section 324 IPC was also framed against accused Mokibotddin. Charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried.

During trial, prosecution examined as many as ten witnesses including the Doctor and the Investigating Officer, while the defence took the plea of total denial. However, apart from taking the plea of total denial, one witness (DW1) was also examined by the defence side.

The learned Sessions Judge, Golaghat by his judgment and order dated 22.6.01 passed in the said Sessions Case No. 15 of 1999 convicted the four appellants, namely, Dudu Ali, Akoni Ali, Mafajul Hussain and Bulu Ali under Section 302 IPC and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs. 10,000/ each, in default, further rigorous imprisonment for two years. So far the charge under Section 324 IPC against the accused Mokibotddin is concerned, the learned trial Court held that the prosecution failed to prove the same and hence, the accused Mokibotddin was acquitted of that charge.

Being aggrieved by the said judgment and order of conviction, the appellants Sri Dudu Ali and Sri Akoni Ali filed Criminal Appeal No. 229/01 while the other two convicts, namely, Sri Mafajul Hussain and Sri Bulu Ali filed Criminal Appeal No. 346/01 in this Court.

We have heard Mr. T.J. Mahanta, learned counsel appearing on behalf of the appellants in Criminal Appeal No.229/01 and Mr. P.K. Roychoudhury, learned counsel appearing on behalf of the appellants in Criminal Appeal No. 346/01. Also heard Mr. K. Munir, learned Public Prosecutor, Assam.

We have meticulously examined the evidence on record. In the instant case Munna Hussain (PW2), Manik Hussain (PW3), Amir Hussain (PW4) and Sarubutol Ali (PW7) have claimed to be eyewitnesses to the occurrence.

PW1, Dr. Kumud Kr. Dutta held post mortem examination on the dead body of Jabaruddin. During post mortem examination, P W1 found the following injuries: "External Injuries:

(1) 1 "x 1 /2" size penetrating wound present on the left side of the chest, the margin is inverted and ragged.

On dissection, the underlying skin, muscle and vessels were found to be cut and pleura and lung were found lacerated.

The pleural cavity was filled up with clotted blood.

(2) One sharp cut injury about 3" in length 1/2" in breadth present on the right side of the abdomen.

On dissection, the underlying muscles, peritoneum and intestine were found lacerated.

The peritoneal cavity is filled with clotted blood.

(3) Left ear was found to be mutilated (severed).

(4) One sharp cut injury size 3" in length, 1" in breadth present on the left side of the neck.

On dissection of the wound, the underlying muscles, veins were found to be cut.

(5)The oesophagus and pharynx were partly cut.

(6) Others organs were found to be healthy.

(7) All changes are antemortem."

On dissection of the wounds, he found some muscles and veins cut. PW1 in his postmortem examination report vide Ext1 opined that the injuries are antemortem and the cause of death of the deceased was severe shock and haemorrhage.

Ext1 is the post mortem report and Ext1 (1) is the signature of P W1.

In crossexamination, P W1 stated that all the injuries were individually fatal.

From the evidence of PW1, we can safely arrive at the conclusion that the deceased died a homicidal death. Now the question arises as to who had inflicted the injuries on the deceased Jabaruddin. To deal with this question we propose to look into the depositions of PW2, PW3, PW4 and PW7, who claimed to be the eyewitnesses to the occurrence.

PW2, Munna Hussain, who is the son of deceased Jabaruddin, lodge the Ejahar (Ext2) with the police. In his deposition, PW2 stated that they had dispute with accused Dudu Ali over land situated at the back side of their house. On 26.5.95, Dudu Ali came to plough that land; however, he went back as Manik Hussain, his elder brother (PW3) forbade him. At about 8 AM, thereafter, accused Dudu Ali, Akoni, Bulu Ali, Mafajul Hussain, Manik Hussain, Bubu Ali, Maina Ali, Jalil, Mukib, Munu Ali, Bubuli Ali, Bhaiti Ali, PetuaAli, Sonbaba Ali, Akon Moina, Samrat Ali and Mahammad Hussain came to their (PW2) house being armed with dao, spear, etc. They (accused) first cut the fencings around the compound and then called the father of PW2, i.e. the deceased by name to road. His father had gone to field for ploughing at that time. So the elder sister Sabina Begum, Saheda Begum and mother Rashida Khatun came out of the house. When they reached the gate way, the accused persons had beaten them. Petua dealt a cut blow in the left hand of the mother of PW2 with a ''khukrT. PW2 ftirther deposed that at that time his father and elder brother, namely, Manik came towards home from the northern side. Accused Dudu, Akoni, Bulu, Mafajul chased them, i.e. father and elder brother of PW2, towards Yaj Ali''s house. PW2 stated that he saw the incident from the verandah of his house and then his other elder brother Bagai (P W 4), Ali Hussain and he himself advanced towards their father and brother Manik in order to save them. His father Jabaruddin and Manik entered into the house of Yaj Ali and closed the back door. Then accused Akoni Ali, Dudu Ali and Bulu entered into the house breaking open the backside door. PW2, Bagai (PW4) and Ali Hussain also entered into the house shouting "don''t beat", "don''t beat". Going there they saw accused Akoni stabbing the deceased in his abdomen with a knife while the other three accused persons had attacked him with spear. When Bagai Ali hugged the father of PW2 in order to save him, Milik Ali came and hit Bagai in the buttock; Bagai fell down. Then accused Akoni inflicated cut injury in the left thumb of Ali Hussain. The father of PW2 was lying injured inside the house of Yaj Ali. PW2 served water to his father but he found that his father was already dead. He saw bleeding injuries in his father''s abdomen, in the portion from ear to neck, in the legs and in the chest In the meantime, somebody shouted that police were coming and hearing such shouting, the accused persons fled away. PW2 accompanied by his brotherinlaw, Insaf, went to Golaghat Police Station and lodged the Ejahar (Ext.2) whereupon Ext.2(1) is the signature of PW2. Injured Bagai, Ali Hussain and Rashida Khatun (mother of P W2) were sent to hospital. Bagai Ali''s name is Amir Hussain.

PW2 was crossexamined by the defence at length. During his crossexamination, PW2 was confronted with his statement made under Section 161 CrPC. On being so confronted, PW2 denied that he had not stated anything about the occurrence in the manner he had deposed in the Court. He also denied that he had stated before police that he could learn from Ali Hussain at the Police Station that the accused persons had killed his father.

PW3, Manik Hussain is another son of the deceased Jabaruddin. He has stated that he and his deceased father came back home from the field hearing commotion near their house and reaching near their house. He saw Dudu Ali, Akoni Ali, Bulu Ali, Mokbul, Mahammad Hussain, Samsul Hussain, Manik Hussain, Bubu Ali, Jan Ali, Mukib Ali, Munu Ali, Jalil and Bubuli near his house with weapons etc. in search of his (PW3) father. On thier (PW3 and his father) reaching home, the accused persons rushed at them being armed with spear, knife (long). PW3 and his father saw Milik Hussain coming from the northern side of Yaj Ali''s house with long spear in hands; out of fear they entered into the house of Yaj Ali and closed the door. Accused persons entered into the house by breaking open the door. Entering into the room Dudu Ali stabbed his father in his abdomen with a spear, while accused Akoni hacked in the head from behind with a knife. The father of PW3 fell down. Then accused Mafajul and Bulu Ali hit him (deceased) with spear. At that time, Amir Hussain (Bagai) (P. W. 4), Munna (PW2) and Ali Hussain came and offered resistance. But accused Akoni hacked Ali Hussain in his hand with knife. The blow had cut his thumb finger. Milik Hussain hit Amir (Bagai) in the buttock with spear. Then P W3 heard commotion outside that police were coming and on hearing such commotion, the accused persons fled away through the rear of the homestead of Yaj Ali. PW3 further deposed that attempt had been made to beat him also, but they could not, since he had retreated. Thereafter, PW3 found his father dead inside the house. He brought Amir (Bagai) home, where he found his mother with cut injury in her arms. He also saw swelling injuries on the person of his sister. He came to know that his mother and sisters were also beaten by the accused. PW3 also saw two arrows, shot by Mukib and Munu Ali sticking to batten of the walls of his house. He found his two younger brothers confined inside the house. Then PW3 along with other injuried came to police station and after lodging the Ejahar they went to Golaghat Civil Hospital. Amir Hussain was kept in the hospital for a month. Subsequently, police visited the place of occurrence and investigated the case. PW3 further stated that their dispute over land was with accused Dudu, Akoni''s family and Mafajul. Dudu, Akoni are maternal uncle (son of mother''s uncle) of PW3.

During his crossexamination, he admitted that he does not know who among the accused persons, had carried what type of weapons. He denied the suggestion that accused Milik Ali had not interrupted PW3 and his deceased father coming from opposite side while they had been running towards Yaj Ali''s house. PW3 was also confronted with some statements made by him before police under Section 161 CrPC. All other suggestions put to him had been denied.

PW4, Amir Hussain is another son of deceased Jabaruddin. While narrating the occurrence, this witness stated, inter alia, that the accused personss (including the present appellants) came to his house being armed with various weapons like spears, bows and arrows and raised hue and cry. Having seen his father coming accompanied by Manik (PW3), the accused namely, Dudu, Akoni, Mafajul Ali and Mafajul rushed at them. At this time, Milik Hussain came and interrupted his father in front of Yaj Ali''s house. His father and Manik (PW3) entered into the house of Yaj Ali and closed the door from behind. While giving individual account of the accused persons, PW4 stated that accused appellants Dudu, Akoni, Mafajul and Bulu entered into the house of Yaj Ali breaking open the rear doors and Milik was standing at the doorstep with spear in hand. PW4 further stated that waiting outside the doorsteps they saw accused appellant Dudu Ali hit the deceased with a spear, Akoni hacked the deceased in the neck with knife while the other accused persons stabbed the father of PW4 with spear. PW4 himself was hit by Milik with a spear in his right buttock and he fell down at the doorstep. PW4 further deposed that he heard Mahammad Hussain asking from the courtyard, "Have you beaten him to death?" and in reply the other accused persons said, "We have finished him." Thereafter, accused persons fled away hearing the sound of vehicle, which they thought to be police vehicle. PW4 found his father in a pool of blood. A spear (belonging to accused appellant Dudu Ali) stained with blood was lying near his father''s dead body, PW4 noticed injuries in the chest, belly, from ear to chest, in the knee and in the back of the head of his father. His mother, Ali Hussain and PW4 himself were treated in the hospital. He stayed at Golaghat Civil Hospital for a night and therefrom he was shifted to Nursing Home at Jorhat.

During his crossexamination, the defence confronted the witness with his statements recorded by police under Section 161 CrPC; on such confrontation, PW4 had denied that he had stated before the police that Dudu, Akoni, Bulu and Mafajul had injured his father inside Yaj Ali''s house; that Mahammad Hussain ordered the accused persons to beat his father to death; that he was absent at the place of occurrence etc. Other suggestions put to him have been denied.

PW5 and PW6, namely, Nurul Hussain and Bhaijan Ali are reported witnesses. PW5 is also a witness to the seizure of the spear vide Ext.3 and Ext.3(1) thereon is his signature. PW6 deposed that on hearing commotion, he came to Yaj All''s mother''s the place of occurrence as have been stated house and found Jabaruddin lying in a pool of by PW2, PW3 and PW4 blood inside there. On being asked, Mam''k, All Hussain and others informed PW6 that Akoni, Dudu and others had killed Jabaruddin. He also saw injury in the buttock of Amir Hussain @ Bagai (PW4).

PW7, Sarubutol, who is also an eyewitness to the occurrence, is a son of the deceased Jabaruddin. PW7 deposed that his family had boundary dispute with Dudu Ali. While giving narratives of the occurrence, PW7 deposed that his father offered resistance when the accused had ploughed the land in dispute. He further stated that the ploughman then left the field unyoking their ploughs. Thereafter, the accused persons, namely, Mafiz, Bubuli, Dudu Ali, Manik Ali, Jan Ali, Akoni Ali, Samrat, Mafajul, Mukib, Jalil Mahammad Hussain, Samsul, Bulu Ali, Parbul attacked the house of PW7. His evidence is fully corroborated by the evidence of other three eye witnesses in respect of the arrival of his father and Manik Hussain (P W3) and they being chased by the accused appellants Bulu Ali, Akoni Ali, Dudu Ali and Mafajul Hussain. While giving account of individual act of the accused persons in commission of the crime, PW7 deposed that he and other two witnesses, i.e. PW2 and PW4 saw the accused appellant Dudu Ali stabbing their father with a spear in the chest first. Then accused appellant Akoni hacked their father in the back of his head with a knife from behind. When Amir (PW4) offered resistance, he was stabbed by Milik Ali with a spear in the buttock. PW7 also stated that the accused appellant Dudu Ali hit him with a spear in his thumb finger. This witness, thereafter, gave a similar version in respect of the fact of escape of the accused persons from

During crossexamination, PW7 admitted that accused appellant Dudu Ali has filed a case against them alleging that they had killed Ali Hussain, elder brother of Dudu Ali and PW7 is an accused in that case.

PW8, Dr. Bimal Kanta Bora, deposed that on police requisition, he examined Amir Hussain @ Bagai (PW4) and found one incised wound in the right buttock, which was in his opinion, simple in nature. Ext.4 is the injury report whereupon Ext.4(1) is his signature.

PW9, Shri Rose Ahmed, SubInspector of Police, Golaghat Police Station is the Investigating Officer (I/O for short) of the case. He deposed that the place of occurrence was the house of Yaj Ali at Sialekhaiti Babar Gaon. He found the dead body of Jabaruddin inside the house. PW9 noticed injuries on the dead body, prepared inquest report, sent the dead body to Golaghat Civil Hospital for post mortem examination, recorded statements of witnesses, seized one spear, vide M.Ext1. PW9 also arrested accused Dudu Ali, Samaruddin, Munu Ali and Bubul. On 1.6.95 he was transferred to some other place and as such he could not complete the investigation.

During crossexamination, PW9 stated that Munna (PW2) did not tell him while recording statement under Section 161 CrPC. that Dudu Ali had gone to field to plough. PW2 also did not tell PW9 that he had seen the incident from the verandah of the house. It was not stated before him by PW2 that he had followed the accused persons when they had chased his father and Manik. PW2 also did not state before PW9 that the four accused persons had entered into the house of Yaj All by breaking open the doors, rather he stated that they had entered into the house. PW9 further stated that the witness (PW2) did not explain to him anything about the occurrence. While being confronted with the evidence of Manik (PW3), PW9 stated that Manik (PW3) did not tell before him that accused Akoni had hacked his father Jabaruddin in his head and Makbul had injured the deceased with spear. PW9 further stated that PW3 did not tell him that Ali Hussain and Munna (PW2) had offered resistance to the accused persons. It was also not stated by PW3 that the accused persons had inflicted injuries on Amir Hussain and Ali Hussain. It has been stated by PW9 that PW3 told him that he had fled from Yaj Ali''s house for his life and had later found his father dead at than PW9 further stated that PW3 did not tell him that the accused persons had beaten his mother and the two sisters too. PW3 also not stated before police that accused Mukib had shot arrows. This PW9 being confronted with the evidence of PW5 stated that the witness did not state before him that the seized spear (M.Ext1) had been lying near the deceased, rather he stated before PW9 that Manik Hussain had handed over the same to the police. PW9 also stated that he found the spear lying at the place of occurrence. Although that is not mentioned in the seizure, it has been mentioned in the case diary.

PW10, Shri Deben Bora, SI of Police took the charge of investigation after transfer of PW9. PW10 completed the investigation and submitted chargesheet. During investigation, P W10 seized the wearing apparel of the deceased, which were stained with blood. M. Exts.2,3 and 4 are the said wearing apparel. P W10 recorded statements of Amir (PW4), Ali Hussain and Bhaijan Ali (P W6). Being confronted with the evidence of Amir (PW4) during his crossexamination by defence, P W10 stated that PW4 did not state before him that accused Milik had interrupted his (PW4) father; rather PW4 stated before him (P W10) that the deceased had entered into Yaj Ali''s house. P W10 further stated that PW4 did not state before him that he (PW4) had seen accused Dudu, Akoni, Bulu and Mafajul inflicting injuries on the person of the deceased. But PW4 stated that chasing his father (deceased), the accused persons had entered into the house of Yaj Ali. It was also not stated by PW4 that the accused persons had entered into the house of Yaj Ali breaking open the doors and that the accused persons had hit Munna and Ali Hussain with the handle of spear. PW10 further stated that PW4 did not state before him about Mahammad Hussain''s ordering the accused persons to finish and the latter''s reply that they have done the job. It was not stated by PW4 to PW10 that Dudu Ali''s spear had been lying near the dead body. P W4 stated that Mukib Ali hit him with iron spear. PW10 in his crossexamination stated that PW4 told him that he had gone to thana when the accused persons had been pursuing his father (deceased) and he did not state before PW10 that he had seen the accused persons killing his father.

Defence has examined one witness, namely, Sahida Begum (DW1), who is the wife of Ali Hussain (accused). She deposed that her husband Ali Hussain was also an accused in the case and after about a year of filing the case, her husband Ali Hussain was murdered. The case relating to killing of her husband is pending against Manik and others. This DW1 further deposed that in the year 1995 her husband had been ploughing their land. Then Jabaruddin (deceased) being armed with spear, forbade her husband to plough. Then her husband chased Jabaruddin and snatched away the spear from him. Jabaruddin entered into the house of Siraj Ali and her husband late Ali Hussain killed the deceased by stabbing him with the spear. She stated that she had seen the incident while going to the field to serve meal. Thereafter, she and her husband fled away and later other people came.

During crossexamination, she admitted that she had not informed the police that the murder was committed by her husband and that she knew about the incident. She further stated that though she had seen the incident she did not raise any alarm. She has also admitted that she did not appear before the police during investigation of the case.

In the statements made by the accused persons under Section 313 Cr. PC., accused Dudu Ali specifically stated that Ali Hussain killed Jabaruddin. All the accused persons denied their involvement in the incident.

Advancing arguments on behalf of the accused appellants, the learned counsels have strenuously argued that the depositions of PWs2, 3, 4 and 7 are not at all reliable although these witnesses claimed to be eyewitness to the occurrence. All the said witnesses are closely related (son of the deceased) to the victim and therefore, thier depositions are liable to close scrutiny, more so, when the prosecution has failed to produce any independent eyewitness, even though, as alleged, the occurrence took place in broad day light. On meticulous scrutiny of the depositions of the said witnesses visavis the evidence of P W9 and PW10 it appears that none of the PWs2, 3, 4 and 7 is actual eyewitness to the occurrence, urged learned counsels for the appellants.

In support of their submission, learned counsels appearing for the accused appellants have relied upon the decision in A nil Phukan Vs. State of Assam, reported in (1993) 3 SCC 282, wherein, while dealing with the question of reliability of the testimony of relatives of the deceased, the Apex Court held that relationship of the witness with the deceased is no ground to discard his testimony, if otherwise found to be reliable and trustworthy. However, the possibility that such a witness may also implicate some innocent persons along with the real assailant cannot be ruled out and therefore, as a matter of prudence, the Court should look for some independent corroboration of the testimony of such a witness to decide about the involvement of the persons accused of the crime.

It is further argued that in the instant case. prosecution witnesses viz. PWs2,3,4 and 7 are interested witnesses. According to the learned counsel, a careful scrutiny of the evidence of these witnesses reveal several contradictions on material points. The prosecution has failed to bring any independent witness to prove the guilt of the accused and in absence of some independent corroboration relating to the involvement of the accused in the crime, this Court should be disinclined to accept the prosecution version, it is contended.

On the other hand, while supporting the conviction and sentence, the learned Public Prosecutor, Assam has argued that the prosecution has successfully proved its case beyond reasonable doubt and therefore, no interference with the impugned judgment and order of conviction is called for. The learned PP further submitted that the contradictions/omissions referred to by the learned counsels for the appellants in the evidence on record are too trivial to merit any serious consideration. It has been strenuously argued by the learned PP, that acting on such minor omissions or contradictions in the evidence of prosecution witnesses, benefit of doubt cannot be extended to the accused appellants either.

Admittedly, the eye witnesses to the alleged occurrence, as examined by the prosecution i.e. PWs 2, 3, 4 and 7 are the sons of the deceased. No independent witness, including the owner/inmate of the house in which the incident allegedly took place has been examined by the prosecution. This is notwithstanding the fact that the prosecution evidence is to the effect that there were several houses in the vicinity of the alleged place of occurrence. Previous enmity between the two groups over a land dispute is also evident from the evidence tendered by the prosecution. Corroboration of the evidence of the alleged eye witnesses from independent sources is also not forthcoming. However, the rule of corroboration being a rule of prudence and not a rule of law, the evidence of the alleged eye witnesses cannot be discarded merely on that score. Rather, a more correct view according to us, would be to consider the intrinsic worth of the evidence of the alleged eye witnesses by proceeding in a slow, careful and cautious manner. While doing so and in determining the culpability of the accused persons, the Court must also take note of the fact that the charge framed against the accused persons under Section 302 IPC is without the aid of either Section 34 or Section 149 of the IPC.

The evidence of the eye witnesses as to the immediate events prior to the alleged assault on the deceased is more or less consistent The group of accused persons, including the present appellants, according to the eye witnesses, came to the house of the deceased and immediately after the deceased along with his son Manik Hussain, PW3 had come there, the four accusedappellants had chased the deceased and his son who took shelter in the house of one Yaj Ali. According to the eye witnesses PWs 2, 3, 4 and 7, the four accusedappellants entered the house of Yaj Ali by breaking the door which had been bolted by the deceased and his son P.W. 3. Thereafter, the accused persons assaulted the deceased with a spear and a knife. While PW2 in his evidence has stated that accusedappellant Akoni had stabbed the deceased with a knife on the abdomen and the other three accusedappellants had assaulted the deceased with a spear; PWs3, 4 and 7 have stated that it is accused Dudu Ali who had stabbed the deceased in the abdomen with a spear, while accused Akoni had hacked the deceased on the head with a knife. Both P Ws3 and 4 have stated that the other accusedappellants had assaulted the deceased with a spear. On the other hand, PW7 has stated that accused Dudu Ali had stabbed the deceased with a spear on his chest. The discrepancy with regard to the assult committed on the deceased by the accused persons as noted above, in our considered view, would not materially affect the culpability of the accused persons. This is because such variance in the description given by the eye witnesses has to be understood to be the outcome of normal human error, confusion and forgetfulness on account of which the Court must consider the evidence tendered in a case on the basis of broad possibilities instead of looking for mechanical accuracy. That apart, the question of availability of evidence of specific as sault committed by the accused individually would also fall into insignificance in view of the medical report which is to the effect that each of the injuries individually was capable of being fatal. It is also our considered view that having regard to the evidence of the eye witnesses with regard to the commission of injuries either by spear of knife on the chest, abdomen and neck of the deceased by the four accusedappellants, which evidence stands corroborated by the evidence of the Doctor (P W1), the culpability of each of the accused persons for the offence under Section 302IPC must be held to be well established.

The evidence of the sole witnesses examined by the defence, details of which have been noted earlier, is to the effect that it isher husband Ali Hussain (since expired) who had caused the death of Jabaruddin by injuring him on the chest with a spear. The aforesaid defence version does not inspire confidence of the Court as the evidence of the defence witness (D. W. 1) was tendered after her husband Ali Hussain had expired and the said version was narrated, for the first time, in Court. Considering the fact that the defence witness had not implicated her husband at any point of time during his lifetime, the Court is inclined to take the view that the evidence tendered by the said witness is not trustworthy.

The Court has also noticed that during the crossexamination of PWs9 and 10 i.e. the Investigating Officers of the case, the defence had tried to bring out certain contradictions in the evidence of the prosecution witnesses, particularly with regard to what was stated in the Court by the said witnesses, but not to the Police during the course of investigation. While it is correct that some of the incriminating circumstances as narrated by the prosecution witnesses in the Court were not reported to the Investigating Officer in the statement recorded under Section 161 Cr.PC, the Court is of the view that such discrepancies do not effect the core of the prosecution case and, in any case, the alleged contradictions in the evidence of the prosecution witnesses have not been proved in the manner required under Section 145 of the Evidence Act.

For all the aforesaid reasons, the Court is of the view that there is no infirmity in the judgment and order dated 22.6.2001 passed by the learned Trial Court in Sessions Case No. 15/99, save and except to hold that the appeal filed by Dudu Ali has abated on account of death of the said accusedappellant. The conviction recorded and the sentence imposed on the other three accusedappellants is maintained and the appeal filed by them is accordingly dimissed.