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Judgment
Heard Mr. H.R.A. Choudhury, learned Senior Counsel, assisted by Mr. Azad Ahmed, learned counsel, appearing on behalf of the appellants and
Mr. M. Phukan, learned Addl. Public Prosecutor, Assam, appearing on behalf of the State.
This appeal is directed against the judgment & order dated 20.07.2017, passed by the learned Additional Sessions Judge, Dhubri, in Sessions Case
No. 40 of 2003 arising out of the Complaint Case No. 1285/2001. By the said judgment, the learned Additional Sessions Judge convicted the appellants
under Sections 302/436/323/427 of the IPC and sentenced them to undergo imprisonment for life under Section 302 of the IPC; imprisonment for 3
(three) years under Section 436 of the IPC and imprisonment for 6 (six) months each, under Sections 427/323 of the IPC. The accused persons were
also sentenced to fine of varied amount with default stipulation.
The prosecution case as reflected in the complaint was that on 14.06.2001 at about 8 PM, while the complainant Nur Mohammad was sitting in his
house, Abdul Mazid, Keta Sheik and Moinul Haque came there and asked the complainant Nur Mohammad to go to a ‘Bichar’(village
meeting). The complainant refused to accompany them to the ‘Bichar’ on the pretext, that he had some guests. Upon his refusal to go to the
‘Bichar’, said Mazid, Keta and Moinul threatened him to kill and set fire to his house and left the place. At about 9.30 PM, when Nur Islam
(PW 5), the brother of the complainant Nur Mohammad, went out to attend the call of nature, the above-named persons started assaulting him by
tying him with an electric post. They also trespassed into the campus of the complainant and started pelting stones and bricks to the walls of the house
and caused damaged to the house by hitting with lathis. They also dragged the family members of the complainant outside the house and assaulted
them severely with various weapons such as lathis, spears, swords, stones, etc. As a result of such assault, Osman Ali (since deceased) sustained
multiple sharp injuries, which led to his death. They also inflicted injuries to Nur Islam (PW 5), Nur Mohammad (PW 1), Ali Hussain, Sahjamal and
Jafar Ali and set fire to a tin-shaded house and two thatched houses and also caused damage to the various household properties. The police refused
to accept the FIR lodged by the complainant side and as such, the PW 1 Nur Mohammad lodged the complaint before the Magistrate. On the basis of
the above complaint, the learned Judicial Magistrate took cognizance and after having found the case triable exclusively by the court of Sessions,
committed the case to the court of Sessions.
The learned Sessions Judge, having taken cognizance of the offence, framed charges against all the 22 accused persons, named in the complaint,
under Sections 436/302/427/323 read with Section 149 of the IPC, to which they pleaded not guilty. In course of trial, 2(two) of the accused persons,
namely Basanta Roy and Bhilosphy died and eventually 20(twenty) accused persons stood trial. 5(five) witnesses were examined by the prosecution
including the Doctor and on appreciation of the evidence, the learned Sessions Judge acquitted 16(sixteen) of the accused persons named in the
complaint and convicted the present appellants under Sections 302/436/323/427 of the IPC and awarded the sentence, as indicated above.
Being aggrieved by the conviction and sentences, the appellants have preferred the instant appeal.
Mr. H.R.A. Choudhury, learned Senior counsel, submits that prior to the present complaint, two FIRs were lodged for the same occurrence. One of
the FIR was lodged by one Basanta Roy, VDP Secretary, on the basis of which, Golakganj P.S. Case No. 67/2001 was registered and another FIR
was lodged later on by a Police Officer, namely, Binoy Kumar Barman, who visited the place of occurrence immediately after the incident and on the
basis of the subsequent FIR Golakganj P.S. Case No. 68/2001 was registered. The complaint from which the present case arose, was lodged after
two months with concocted story so as to prepare defence in the police case lodged against the present appellants, submits Mr. Choudhury. Mr.
Choudhury, further submits that some of the vital witnesses, who allegedly sustained injuries have not been examined and the oral testimonies of PW
1, PW 2, PW 3 and PW 5 on the basis of which the learned trial court recorded the conviction, were totally unreliable, being contradictory on material
facts, and as such, no conviction could have been recorded on the basis of such unreliable evidence.
On perusal of the impugned judgment, we find that although, initially charges were framed against all the accused persons with the aid of Section
149 of the IPC, attributing constructive liability, the learned Sessions Judge on appreciation of evidence came to the findings that there was no
materials to invoke the provision of Section 149 IPC and convicted the present appellants on the basis of their individual acts and exonerated the rest
of the accused persons. On our assessment of the evidence and materials brought on record we are also of the view that the learned trial court rightly
came to the finding that there was no ingredient of Section 149 of the IPC, for attributing the constructive criminal liability.
PW 1, the complainant (Nur Mohammad) deposed that on 14.06.2001 in the evening, while he was discussing with his brothers and other witnesses
regarding harvesting of their crops, Keta, Moinul, Sattar, Shib-Charan and all other accused persons came and requested him to go to village
‘bichar’. As he was reluctant to go to village ‘bichar’, they left the house of the complainant and after some time when his brother Nur
Islam (PW 5) went to toilet, the accused persons, who were waiting on the road, started assaulting him. Hearing alarm raised by Nur Islam, when he
(PW 1) and his brother Osman, Ali Hussain, Sahajana and Jabbar rushed to the place of occurrence, the accused persons attempted to assault them
and they came back home, and the accused persons continued to assault Nur Islam by tying him with an electric post. He further deposed that the
accused persons set fire to their thatched house and they moved towards the pond on the western side of their house and while they were standing
there, the accused persons started pelting stoned on them and one of the stones hit on Osman Ali and consequently he fell down and the accused
persons attacked Osman Ali with dagger. He also stated that Sattar assaulted Osman with an iron rod. He further stated, that the accused Keta,
Moinul and Shivcharan assaulted him and other members of their family, namely Ali Hussain and Osman died on the spot. According to him (PW 1)
an FIR was lodged by his wife in Golakganj PS, which was registered after 6 (six) months. During cross-examination of this witness, it was elicited
that one Basanta Roy lodged an FIR before the I/C of Amuguri Police Outpost branding them (complainant party) as MULTA activists and also
alleging that they (complainant party) themselves had set fire to their house.
PW 2 (Jakina Bewa), mother-in-law of PW 1 stated, that she was inside the house and as such, she did not have the opportunity to see the first part
of the occurrence. According to her, having heard that Nur Mohamad was assaulted by about 20/22 persons, her sister Kete Bewa (PW 3) went
there and she was also assaulted by the accused persons. Thereafter accused persons set fire to their house and then Sattar took a lathi and assaulted
her. She also stated that the accused persons set fire to the house of Nur Mohammad and caused damaged to the properties. According to her, when
they took shelter on the roof of a house, Osman Ali fell down from the roof and sustained injuries. She further stated that the accused persons also
assaulted Osman Ali with sharp weapon and inflicted injuries. Immediately thereafter a vehicle came and took away the injured persons including
Osman, who later on succumbed to his injuries. During cross-examination, she admitted to have not stated specifically before the Magistrate, as to
who assaulted whom or who had set fire to the house.
According to PW 3, Kechu (not accused), Moinul, Sattar and Chitra (not accused) came to call Nur Mohammad to attend village ‘bichar’ but
he did not go and after a while, Nur Mohammad (PW 1) went out and thereafter hearing hue and cry, she also rushed to the place of occurrence and
the accused persons assaulted her with lathi. She further stated that the accused persons also assaulted Nur Mohammad and others and set fire to the
house of Nur Mohammad and three other houses, as a result of which all the house hold goods were gutted. When they raised hue and cry, the
accused persons pelted stones to the pond and they also assaulted Osman Ali, causing grievous injuries to Nur Mohammad, Ali Hussain and deceased
of Osman Ali.
According to PW 5, Nur Islam, when PW 1 Nur Mohammad and others when sitting in the campus, accused Keta, Sattar, Shib Charan and
Moinul came there and asked PW 1 Nur Mohammad to attend the village meeting, but Nur Mohammad refused to go to the meeting. After sometime,
Keta, Sattar, Shib Charan and Moinul again came and assaulted PW 5, while he was standing on the road. According to him, Keta and Sattar set fire
to the house and when Osman Ali came out, Keta hit him on his head by an iron rod. He further deposed that all the 4 accused persons hit and
stabbed him by sharp weapon and pointed bamboo sticks. According to him, accused persons also inflicted injuries to other members of the family.
PW 4 (Dr. NK Choudhury) deposed that he conducted post-mortem- examination on the body of Osman Ali in connection with Golakganj P.S.
GD Entry No. 412 dated 14.06.2001 found the following injuries:-
“An average built male body, rigor mortis present all over the body. A fracture was present on right side of skull bone size 1 inch x ½
inch x ½ inch. The brain membrane ruptured on right side. Blood clot was 1 inch x 1 inch x 1 inch present on right side of brain. Death, in
my opinion, is due to shock & haemorrhage as a result of head injury sustained by the deceased. Ext.-2 is my medical report. Ext. 2(1) is
my signature.â€
In the cross-examination, the doctor stated that fracture injury sustained by the victim Osman Ali might be caused by falling on hard substance also.
A dispassionate scrutiny of the oral testimony of the aforesaid witnesses would show that according to PW 5, Keta, Sattar, Shib Charan and
Moinul came to the house of PW 1 to call him to attend the ‘bichar’ whereas according to PW 3 and PW 4, Moinul, Sattar, Kechu and Chitra
came to call Nur Mohammad. As already indicated above, Kechu and Chitra were neither accused nor they were named in the FIR. According to the
deposition of PW 1 before the court all the accused persons including Mazid, Keta and Moinul came to call PW 1 to attend the meeting. Whereas in
the complaint lodged by him (PW 1), it was stated that, only Mazid (not accused), Keta and Moinul came to all him. Again, his statement recorded
under Section 200 Cr.P.C., PW 1 made a different statement that when his brother Nur Islam went out for defecation, he was assaulted by accused
persons and they also set fire to the house and in the light of the flame they could see the accused persons. PW 1 did not state about the first part of
the incident regarding the accused persons calling him (PW 1) to the village meeting etc.
In their evidence in Court, PW 1 stated that Sattar hit on the head of Osman Ali with rod and Keta, Moinul and Shib Charan assaulted him with
dagger and khopa. Whereas according to PW 2, all the accused persons assaulted Osman Ali with sharp weapon. PW 3 also stated in the same tune
that all the accused persons standing trial assaulted Osman with lathi and dao and according to PW 5 it was Keta who assaulted Osman with rod and
rest of the accused persons inflicted stab injury to the victim Osman Ali. However, in the previous statement before the Magistrate they did not
specifically mentioned the name of any of the accused persons having assaulted the victim.
From the above evidence, it appears that the oral testimony of all the four witnesses were inconsistent and contradictory on materials facts. In
fact, all the four witnesses made contradictory and mutually destructive statement as to the involvement of the accused persons and also genesis of
the occurrence. According to PW 1, when PW 5 went out for defecation, he was assaulted by the accused persons, and when others including PW 1
and deceased Osman Ali went out, hearing alarm raised by Nur Islam (PW 5) accused persons attempted to assault them and thereafter, set fire to
their house. Whereas, according to PW 2, initially the accused persons assaulted Nur Mohammad (PW 1) and when PW 3 Kete Bewa went to the
place of occurrence having come to know about the assault of Nur Mohammad, she was also assaulted and thereafter the accused persons set fire to
their house. According to her, Sattar assaulted the victim Osman. The PW 3 stated that initially Keta, Sattar, Shib Charan and Moinul asked PW 1 for
attending village meeting and on his refusal, the four accused persons again came back and started assaulting him and when his brother Osman Ali
came out, he was also assaulted by Keta.
From the above inconsistent testimony of PW 1, PW 2, PW 3 and PW 5 with regard to occurrence, it appears that either the prosecution
witnesses have suppressed the real genesis of the occurrence or they did not tell the truth before the Court. Evidently on the date of occurrence, two
FIR was lodged, one by BDP Secretary and the other by the police officer, resulting in registration of the two police cases and the available materials
on record of the said cases, reflected different story, according to which, the PW 1 and some others being members of an extremist organization were
making preparation to commit decoity. Sensing evil design of the PW 1 and his companion, a large numbers of villagers gheroaed the house of PW 1
and while they tried to flee the place, they themselves set fire to the houses and the villagers attacked them and in the process, Osman sustained
injuries and he was shifted to hospital. These versions also finds support from the oral testimony, PW 2, who stated in his evidence that immediately
after the occurrence, police shifted all the injured including Osman Ali from the place of occurrence. When different different stories are projected,
either court has to reject all or accept the one which is favourable to the accused. Because it is the established principle of criminal justice, that when
there are two views, the one favourable to the accused, has to be accepted.
Although, PWs 1, 2, 3 and 5 deposed that Osman Ali died on the spot, such testimony is not supported by the medical evidence of PW 4. We also
notice the inconsistency between the oral and medical evidence with regard to the injury sustained by the deceased Osman Ali. Though the
prosecution witnesses stated that multiple injuries were inflicted to the victim Osman with sharp as well as pointed weapon, no such injury caused by
sharp or pointed weapon was found on the body of the victim Osman. According to Doctor (PW 4), only one fracture injury was found on the skull,
which was caused by blunt object.
In view of the contradictory and mutually destructive oral testimonies of the eye-witnesses with regard to the assault on Osman Ali and the
weapon used, there is no reason for disbelieving the medical evidence of PW 4. Apparently, the victim Osman did not die, on the date of occurrence
deposed by the so called eye witness. The evidence of PW 4, the Medical Officer, that there was only one injury caused by blunt object, which could
be caused by falling down on hard substance, again lent support to the oral evidence of PW 2, who stated, that when the accused persons attacked
them, they took shelter on the roof of a house, wherefrom Osman fell down and sustained injury. Thus the medical evidence supported by the oral
testimony of the PW 2 demonstrated that the injury causing death of Osman being self-inflicted also cannot be ruled out. The evidence of PW 2
supported by medical evidence also strongly probabilise the story reflected in the FIR lodged by the VDP Secretary on the day of occurrence itself.
Another important circumstances, we notice is that the complaint was lodged after 2 (two) months from the date of occurrence, though the FIRs
was lodged on the same date. True it is, mere delay in lodging complaint or FIR by itself, is not fatal. The pertinent question is whether the delay in
lodging the FIR or the complaint is satisfactorily explained. What is fatal is the delay which remains unexplained or not satisfactorily explained. In the
instant case, the complainant sought to give various explanations for the delay in filing the complaint. It is stated in the complaint that the complainant
Nur Mohammad was lying in the hospital and therefore, delay was caused in lodging the FIR. Again he stated, that the police did not accept the FIR
lodged by them and therefore the present complaint was lodged. In his examination under Section 200 CrPC, the complainant (PW. 1) stated that as
he was arrested by the police, there was delay in lodging the FIR. During evidence, PW 1 again stated that his wife lodged FIR at Golakganj Police
Station which was registered after six months upon their repeated insistence, and therefore he filed the complaint. It is also in the evidence that
immediately, after the occurrence, police arrived in the place of occurrence and took the complainant and other injured to hospital and police Station.
Though, it was stated that an FIR was lodged and the same was registered after six months, no material could be brought on record to substantiate
such assertions. In fact, we find that the complainant has given different explanations to explain the delay at different stages, and as such we do not
feel inspired, to accept the explanation given by the complainant to be reasonable, bona fide or satisfactory one for the inordinate delay of two months
in lodging the complaint, more particularly when, FIR was lodged by the other party immediately after the occurrence against the complainant party.
We are therefore, of the view, that the complainant has not been able to explain inordinate delay of about two months in lodging the complaint, which
we find to be an added circumstances raising reasonable doubt on the veracity of the prosecution story, projected by the complainant.
Thus, in view of the glaring inconsistencies and contradictions in the oral testimony of PWs 1, 2, 3 and 5, inconsistency between the medical
evidence and oral testimony, the probability of the victim Osman Ali having died out of self inflicted injury, unexplained delay of about two months in
lodging the complaint coupled with the suppression of the real genesis or not disclosing the real genesis of the occurrence, in our considered opinion,
creates serious doubt about the veracity of the prosecution case, and as such, the prosecution can, by no stretch of imagination, be held to have
discharged its burden to prove the guilt of the appellant beyond all reasonable doubt. Therefore, in our considered view, at least the appellants in the
instant case ought to have been given the benefit of doubt.
In view of the above, we are constraint to hold that the impugned judgment and order convicting and sentencing the appellants under Sections
302/436/323/427 IPC is not sustainable. Accordingly, we set aside the conviction and sentence of the appellants in Sessions Case No. 40 of 2003 and
set the appellants at liberty. The bail bond in respect of the appellants stand discharged.
Send back the LCR forthwith.