Gauhati High Court
Page No.# 1/27 vs The State Of Assam And Anr on 25 March, 2026
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/27
GAHC010030802024
2026:GAU-AS:4454-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./44/2024
ZAKIR HUSSAIN LASKAR @ JAKOI
S/O LATE ISLAM UDDIN LASKAR,
VILL.- NIZ-VERNERPUR (LALACHERRA), P.S.- LALA, DIST.- HAILAKANDI
(ASSAM).
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM.
2:MUSSTT. AKLIMA BEGUM LASKAR
W/O LATE ALIM UDDIN LASKAR
VILL.- JOYKRISHNAPUR (SOKALARPOR)
P.S.- LALA
DIST.- HAILAKANDI (ASSAM)
PIN- 788163
Advocate for the Petitioner : MR. L R MAZUMDER, MR. A ISLAM
Advocate for the Respondent : PP, ASSAM,
BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MR. JUSTICE PRANJAL DAS Date on which judgment is reserved: 18.02.2026 Date of pronouncement of judgment: 25.03.2026 Page No.# 2/27 Whether the pronouncement is of the N/A Operative part of the judgment :
Whether the full judgment has been Pronounced :Yes JUDGMENT & ORDER (CAV) (Mr. Pranjal Das, J.)
1. Heard Mr. L.R. Mazumder, learned counsel appearing for the appellant. Also heard Ms. B. Bhuyan, learned Addl. P.P. appearing for the State respondents assisted by Ms. R. Saloi.
2. The instant criminal appeal has been preferred by the convict appellant, Zakir Hussain Laskar @ Jakoi, against the judgment dated 04.01.2024 and order of sentence dated 06.01.2024, passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 02/2017, convicting the appellant under section 302/307/326 IPC and sentencing him to undergo imprisonment for life, along with fine of Rs.20,000/-, in default R.I for one year, for his conviction under section 302 IPC; rigorous imprisonment for 10 years and fine of Rs. 10,000/- in default R.I for 6 months, for his conviction under section 307 IPC; rigorous imprisonment for 5 years and fine of Rs. 5000/-, in default R.I for 3 months, for his conviction under Section 326 IPC. The sentences were directed to run concurrently.
3. The prosecution case in brief is that informant Aklima Begum Laskar lodged an ejahar on 26-07-2015 at the Lala police station in the district of Hailakandi with the allegation that on that day at around 5.00 p.m., her husband Alimuddin Laskar and brother-in-law Islamuddin Laskar were standing by the roadside in front of the pharmacy of Altaf Hussain and were having a discussion, whereupon the convict appellant came on a Page No.# 3/27 motorcycle and parked the same near her husband.
4. It is further alleged that thereupon, the appellant took out a long-
handled Dao and suddenly attacked her husband and gave repeated blows on him as a result of which, her husband fell down on the ground and succumbed to the injuries. It is further alleged that her brother-in-law, in order to save himself, entered the pharmacy, but the appellant chased him, entered the pharmacy and assaulted her brother-in-law, who was the father of the accused, causing serious injuries on him. It is alleged that thereafter, the accused came out of the pharmacy and fled away by riding his motorcycle and that at the time of lodging of the FIR, her brother-in- law was undergoing treatment at SMCH, Silchar in a serious condition.
5. On the basis of the information, GDE No.625 dated 26-07-2015 was made and S.I H.H. Laskar was endorsed to take the preliminary steps. Subsequently, on receipt of a formal FIR, Lala PS Case No. 367 of 2015 was registered under Section 307/302 IPC and SI H.H. Laskar was endorsed to investigate the case.
6. Upon completion of investigation and finding sufficient materials, the IO submitted charge sheet against the convict appellant under Section 307/302 IPC. Thereafter, upon completion of the usual formalities, vide order dated 21-01-2017, charges were framed against the appellant under Section 326/307/302 IPC. The charges, upon being explained and read over to him, were denied by the appellant, whereupon the trial started.
7. During the trial, the prosecution examined 18 witnesses. After completion of prosecution evidence, the appellant was examined under Section 313 Cr.P.C. The defense did not adduce any evidence.
Page No.# 4/27
8. Mr. L.R. Majumdar, the learned counsel for the convict/appellant has taken the Court through the depositions. He has contended and submitted that in G.D.E No. 625 made upon getting information about the incident, there was no mention of the appellant and of any eyewitnesses. Though the name of the appellant was mentioned in the FIR, the learned counsel contends that this is a discrepancy in the prosecution case. It is submitted that there has been a 6(six) hours delay in lodging of the FIR.
9. It is submitted that the Dao stated to be the weapon of offence was recovered from the house of PW-4 and that the prosecution has not been able to forensically prove as to whom the bloodstains on the Dao belong to. The learned counsel for the appellant questions the claim of PW-2 and PW-10 about the eyewitnesses, further submitting that their claim of being eyewitnesses suffers from infirmities and should not have been believed by the learned trial Court.
10. In this context, it is also submitted by the learned counsel for the appellant that other witnesses have not stated about their presence at the place of occurrence and that one witness was declared hostile in this regard. Reiterating the submission on this point, the learned counsel submits that the testimony of PW-2 and PW-3 as well are not reliable and are of suspicious nature. It is submitted that in the cross-examination of PW-12, he has not stated about finding the pharmacy owner Altaf Hussain at the place of occurrence.
11. It is submitted that during the investigation, the statement of the injured witness Islamuddin was not recorded. The testimony of PW-3 about being 500 meters away from the place of occurrence also is doubtful in view of the indications in this sketch-map. It is reiterated and Page No.# 5/27 submitted that PW-12 has not stated about the presence of PW-10 as the pharmacist at the place of occurrence.
12. The learned counsel for the appellant submits that because of the infirmities in the prosecution case, the impugned judgment and order is not sustainable and prays for setting aside the same, thereby acquitting the appellant.
In support of his submissions, the learned counsel for the appellant cited the following decisions :-
(i) Thulia Kali vs. State of Tamil Nadu, (1972) 3 SCC 393.
(ii) Govind Mandavi vs. State of Chattisgarh, 2025 INSC 1399.
(iii) State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254.
(iv) Nazim & Ors. Vs. State of Uttarakhand, 2025 INSC 1184.
(v) Ram Kumar Pandey vs. State of Madhya Pradesh (1975) 3 SCC 815.
(vi) Sujit Biswas vs. State of Assam, 2013 CRI LJ 3140.
(vii) Aminur Islam (Md.) & Ors. Vs. State of Assam, 2016 (5) GLT
69.
(viii) Jakir Hussain vs. State of MP, 2012 CRI LJ 1289 (CHHC).
13. On the other hand, Ms. B. Bhuyan, learned Additional P.P. representing the prosecution supports the impugned judgment and order, contending that there is no infirmity in the same. It is submitted that the testimony of the prosecution witnesses, especially the testimony of the eyewitnesses PW-2 and PW-10 have been duly corroborated by the medical evidence and the testimony of the other witnesses. It is submitted Page No.# 6/27 that PW-2 has reiterated in cross-examination that he saw the incident.
14. It is submitted that the testimony of PW-10, owner of the pharmacy, in his deposition, during the trial, and also his statement recorded before Magistrate during investigation, corroborate and lend support to the prosecution case. It is submitted that from the testimony of PW-7, it emerges that the Dao as stated to be the weapon of offence or seized from the house of Altaf Hussein, brother of the accused, and that the same has also been corroborated by PW-5.
15. Summing up the submissions, the learned Additional P.P. submits and contends that there is no merit in the appeal and that the same may be dismissed by upholding the impugned judgment and order.
In support of her submissions, the learned Additional Public Prosecutor relies on the following decisions :-
(i) State of UP vs. Naresh & Ors. (2011) 4 SCC 324.
(ii) Ravinder Kumar & Anr. vs. State of Punjab, (2001) 7 SCC
690.
(iii) T.T. Antony vs. State of Kerala & Ors., AIR 2001 SC 2637.
16. We have perused the impugned judgment, the evidence on record, the Exhibited documents and other relevant materials. We have considered the submissions of the learned counsels on both the sides. We have perused the decisions cited at the Bar.
DISCUSSON AND DECISION
17. As per the prosecution case, PW-2 and PW-10 were eyewitnesses to the occurrence. PW-2 is Rubul Hussain who stated that on the day of the Page No.# 7/27 incident on 26.07.2015 at about 5.00 P.M., he was on the National Highway, at about 3/4 nals away from the place of occurrence and at the place of occurrence, there was one pharmacy of Altaf Hussain. PW-2 further testified that at that time, he found the appellant, Zakir Hussain Laskar, coming from Lalacherra on a bike and he stopped near the pharmacy. He further stated that at that time, his father and uncle Islam were there. PW-2 testified that upon arriving at the spot, the appellant, taking a Dao from his bike, gave a Dao blow on the head of the father of PW-2, as a result of which his father fell on the ground and by that time, his uncle Islam Uddin went to the pharmacy of Altaf Hussain but the appellant rushed to the said pharmacy and inflicted Dao blows on him too. Testifying further, PW-2 stated that upon coming out of the pharmacy, the appellant found the father of PW-2 alive and gave more Dao blow on his neck, whereupon, the father of PW-2 died on the spot instantly. He testified that people started assembling there and the accused left the place on his motorcycle and immediately thereafter, mother, brothers and sister of PW-2 came to the place of occurrence and he narrated the incident. He proved the inquest report of the deceased as Exhibit-1 and his signature there on as Exhibit-1(1). The injured Islam Uddin was shifted to hospital for treatment.
18. In his cross-examination, PW-2 stated in the context of gathering of people, that the incident took place on the public road and from the neighboring people Nasir Uddin, Mojaidul Islam and Habijur Laskar were present at the place of occurrence. He stated that it was not a marketplace and there was no other shop, except one shop. He stated that the appellant fled away from the place of occurrence when he saw Page No.# 8/27 the people gathering there. In cross-examination, PW-2 reiterated that he had seen the appellant coming from Lalachhera on a bike and stopping near the pharmacy. He reiterated that during the incident, when the appellant came out of the pharmacy and found the father of PW-2 alive, he gave more Dao blows on his neck, as a result of which the victim died instantly. PW-2 stated about narrating the incident to his mother. In cross- examination, PW-2 reiterated that he had seen the incident by denying the suggestion to the contrary in this regard. He also reiterated that the appellant murdered his father and assaulted his uncle in the pharmacy.
19. Altaf Hussain Chowdhury (PW-10) is also stated to be another eyewitness as per the prosecution case and during the trial, he adduced evidence as PW-10. He testified that he knew the appellant and on 26.07.2015 at about 5.30 P.M., when he was sitting on the veranda of his homeopathic shop at Abdullahpur point situated by the side of the National Highway, he saw Alim Uddin and Islam Uddin, who were brothers coming from the southern direction towards his shop.
20. Testifying further, PW-10 stated that when these two brothers came in front of his shop, the appellant came from the northern direction by riding a motorcycle, stopped near them and took out a Dao of about one cubit length from his bike and attempted to assault his father Islam Uddin but Alim Uddin, uncle of the appellant, came in the middle and tried to resist by raising hands. PW-10 further testified that thereupon, the appellant inflicted three Dao blows on the head of Alim Uddin. PW-10 stated that he felt helpless and started raising hue and cry. His father entered the homeopathy shop and the appellant also entered his shop and that there was none present inside his shop at that time except the Page No.# 9/27 appellant and his father. He further stated that as he was outside the shop, he did not see the appellant assaulting his own father Islam Uddin but since there was none present, upon seeing the blood oozing injuries of said Islam Uddin, his strong belief was that it was the appellant who had assaulted his father with the Dao.
21. Testifying further, PW-10 stated that when the appellant came out of the shop after assaulting Islam Uddin, the other victim, Alim Uddin, who was the appellant's uncle, was lying on the ground with his face upwards and he was almost dead but the appellant again inflicted Dao blow on his neck whereupon Alim Uddin died on the spot. Many people started gathering and injured victim Islam Uddin was taken to the hospital. PW-10 has stated about recording his statement before the learned JMFC during investigation. He proved the said statement as Exhibit-7 and his signatures thereon as Exhibit-7(1) and 7(2).
22. In cross-examination, PW-10 admitted that he had not seen the actual incident of assault on Islam Uddin, who was the father of the appellant. He stated that the entire incident occurred within a span of 2/3 minutes and upon his raising hue and cry, nearby people started gathering, amongst whom he could identify Badrul Islam Hazari, Giyas Uddin Laskar, Jahir Uddin Hazari and others. He further stated that before the people started gathering, the appellant left the place with his motorcycle. PW-10 in his cross-examination denied the defence suggestion in this regard and reiterated that at the relevant time, at around 5.30 P.M, while sitting on the veranda of his homeopathic shop, he saw the deceased and the injured victim coming; subsequently, the coming of the appellant on his motorcycle; his stopping near them and taking out a Dao Page No.# 10/27 and trying to assault Islam Uddin, whereupon Alim Uddin raised his hand to resist and the appellant inflicted three Dao blows on the head of Alim Uddin; that thereafter, Islam Uddin entered the homeopathic shop but he was followed by the appellant and inside the shop, there were none except Islam Uddin and the appellant and therefore, he strongly believed that it was the appellant who assaulted Islam Uddin with the Dao; that when the appellant came out of the shop and found Alim Uddin lying on the ground, almost dead, he again inflicted Dao blows on the neck. PW-10 denied the suggestion that being the son of one of the victims, he had deposed falsely. He also denied that he had recorded his statement before learned JMFC under influence. By denying the defence suggestion in this regard, PW-10 reiterated that the appellant is involved in the incident of murder.
23. As already mentioned above, during investigation, the statement of PW-10 was recorded before Magistrate and he also stated in cross- examination that he made a statement without influence. The said statement has been exhibited as Exhibit 7 as mentioned above. In the said statement, PW-10 Altaf Hussain Chowdhury stated that on 26.07.2015, around 5.30 P.M., he was sitting at his Homeo clinic at Abdullahpur Part-2, whereupon, he saw the appellant coming towards his shop on a motorcycle and he also saw Islam Uddin Laskar and Alim Uddin Laskar coming on foot. He further stated that thereafter he saw the appellant stopping his bike, taking out a Dao from his bike and attempting to assault Islam Uddin, whereupon, Alim Uddin tried to stop him with his hand but the appellant assaulted Alim Uddin on his face. PW-10 further stated that he came out shouting and then Islam Uddin ran and entered his Homeo Page No.# 11/27 shop, whereupon, appellant also entered and assaulted Islam Uddin on his face and hand with a Dao. He further stated that after the neighbours arrived, they found Islam Uddin to be still alive and he was taken to hospital. He stated that after causing the assault, the appellant left the place by his bike. PW-10 also stated that when the appellant noticed that Alim Uddin was still lying alive, he again assaulted him with a Dao and left the place by his bike.
24. Thus, we find that there is very significant harmony between the testimony of PW-10 and his statement recorded before Magistrate. The description regarding the nature of the incident is the same in his deposition as well as in his statement before Magistrate. His testimony during trial about the appellant assaulting Alim Uddin the second time leading to his instant death has appeared in his statement under Section 164 Cr.P.C as well. The nature of the incident described by PW-2 and PW- 10 are also on almost identical lines. As already mentioned, the testimony of PW-10 finds corroboration from his statement under Section 164 Cr.P.C.
25. Upon carefully perusing the cross-examination of PW-2 and PW-10, we find that the testimony of these two eyewitnesses have remained unshaken in cross-examination and both the witnesses have reiterated about witnessing the incident on these lines in their cross-examination. Both the witnesses have denied that they have deposed falsely. The aspect of PW-2 and PW-10 being eyewitnesses to the incident, as revealed by their testimony in their examination-in-chief has not been shaken or demolished in their cross-examination.
26. Dr. M. R. Mazarbhuiya, who deposed during the trial as PW-13, had conducted autopsy on the dead body of the deceased Alim Uddin Laskar.
Page No.# 12/27 He stated that on 26.07.2015, while on duty at Civil Hospital, Hailakandi, he conducted post-mortem examination in the afternoon on the dead body of the deceased Alim Uddin Laskar on police requisition in connection with Lala P.S. GDE No.625 dated 26.07.2015. He stated that upon examination he found the following injuries:- (i) One sharp cut injury over left side of throat of size 7cm x10cm, x4cm. (ii) One sharp cut injury over left eye ball continuing up to face of size 10cm x2cm, x4cm. One sharp cut injury over parietal region of scalp on the left side of size 5cm x2cm x 2cm .
27. Regarding the death, he opined that death was due to irreversible neurogenic shock, along with haemorrhagic shock, as a result of sharp cut injury by forceful sharp object. He further opined that the cause of death was antemortem in nature caused by grievous sharp cut injury, leading to irreversible haemorrhagic and neurogenic shock, by forceful sharp object and resulting death. He Exhibited the P.M. report as Exhibit-8 and his signature as Exhibit-8(1). In cross-examination, he stated that he found all the injuries on the left side of the deceased. It may be mentioned herein that both PW-2 and PW-10 stated to be eyewitnesses have testified about the appellant inflicting Dao blow on the head of the deceased. Both the eyewitnesses have also testified about the appellant, in the second round of assault upon Alim Uddin, inflicting Dao blow on his neck. The aforesaid oral testimony of PW-2 and PW-10 regarding the said nature of the assault has remained consistent and stood its ground in cross-examination, as already discussed.
28. Considering the nature of the injuries found by the autopsy doctor as narrated above, we find that medical evidence renders significant corroboration to the ocular evidence of PW-2 and PW-10. The injuries Page No.# 13/27 found by the doctor are very much compatible with the description of the assault by the eyewitnesses. The opinion of the MO regarding death about the victim suffering a sharp cut injury by a forceful sharp object causing grievous sharp cut injury is also highly compatible with the testimony of the eyewitnesses PW-2 and PW-10 about the appellant forcefully assaulting the victim Alim Uddin with a Dao first on the head and subsequently, on the neck.
29. Thus, we find that in the instant case, the testimony of the eyewitnesses and the medical evidence corroborate each other. The other victim Islam Uddin Laskar, who was also allegedly assaulted by the appellant during the incident was examined at SMCH, Silchar and in this regard Dr. Faruk Ahmed Chowdhury, who deposed as PW-14 had prepared the medico-legal report. However, he was not the examining doctor. In his testimony, he stated about examination of Islam Uddin Laskar at SMCH on 26.07.2015 with alleged history of assault on 26.07.2015. He described the injuries as follows:- incised wound of size 5cm x 2cm x 2cm over right forearm with abnormal mobility of right forearm bones; incised wound of size 7cm x 2cm x 2cm over dorsal spine; incised wound of size 7cm x 3cm x 1cm over right arm with exposed bones. He stated that there was total amputation of right hand at the wrist joint with type 3 B compound fracture of both bones of the right forearm. The injuries were described as grievous, caused by sharp object and that at the time of examination those were fresh. He exhibited the Medico-Legal Report as Exhibit-9 and his signature thereon as Exhibit-9(1).
30. In cross-examination, PW-14 stated that with such type of injuries, the patient may die due to his physical condition. It appears that Page No.# 14/27 subsequently during the trial, the said injured victim expired. In this context, it may be mentioned here that his statement was recorded before learned JMFC exhibited as Exhibit-7. PW-10 Altaf Hussain Chowdhury stated about assault upon Islam Uddin by the appellant with Dao, as already narrated earlier. However, in his testimony during the trial, he stated about Islam Uddin entering the pharmacy shop to escape from the appellant, but the appellant chased him inside and from the bleeding injuries on Islam Uddin, he strongly believed that the appellant had assaulted Islam Uddin. He reiterated the same in cross-examination.
31. PW-2 stated to be the other eyewitness has also deposed on similar names about Islam Uddin trying to escape by going into the pharmacy into the shop, but the appellant chasing him there and assaulting him with Dao blows. Therefore, the testimony of the eyewitnesses with regard to Islam Uddin is also compatible with the findings of the doctor as revealed by the medical evidence. In the testimony of eyewitness PW-2, he has stated that after the incident when people started gathering at the place of occurrence he saw some neighbouring people such as Nasir Uddin, Mojaidul Islam and Habijur Laskar.
32. The said Nasir Uddin has testified as PW-6. From his testimony, it emerges that on 26.07.2015, he is stated to have been about one kilometer away from the place of occurrence at around 4.00 P.M., whereupon, he saw people running towards a direction and he also proceeded by riding his bike and upon reaching the pharmacy of Altaf Hussain Chowdhury (PW-10), he saw Alim Uddin, who was his maternal uncle lying dead on the ground by the side of the National Highway. He stated that his head was almost severed and there were other cut marks.
Page No.# 15/27 He further stated that Islam Uddin Laskar, who was the father of the appellant was also in injured condition with cut injuries on his hand and was being taken to hospital. He stated about being reported by Ruhul Alom Laskar, cousin of the appellant that the appellant had committed the incident by Dao. He reiterated in cross-examination about the same and upon being so reported by Ruhul Laskar about the incident. He admitted in cross-examination that he did not see the incident himself. Thus, PW-6 corroborates the testimony of PW-2 about the incident and about PW-6 coming to the place of occurrence soon after.
33. The ejahar was lodged by Aklima Begum, the wife of deceased and mother of Rubul Hussain, PW-2. The ejahar was written by a scribe whose name was Jamal Uddin Laskar and he testified as PW-9 confirming that on 26.07.2015, he wrote the ejahar as per the version of Aklima Begum, wife of Alim Uddin and she put her thumb impression after the contents were read over to her. PW-9 proved the ejahar Exhibits-6 and his signatures as Exhibit 6-(1) and 6(2). In her testimony, Aklima Begum, the informant who testified as PW-1 stated about rushing to the place of occurrence upon hearing hue and cry and finding her husband Alim Uddin lying on the ground with cut injuries on his neck, face and head. She testified that her aforementioned son witnessed the entire incident and reported about the same to her. She stated that in the incident, her husband died on the spot and brother-in-law Islam Uddin sustained injuries on his right hand caused by Dao.
34. In cross-examination, she stated that she found the appellant among the crowd at the place of occurrence and later, he left the place of occurrence. It may be mentioned herein that in his testimony PW-2 has Page No.# 16/27 stated about reporting the entire incident to his mother who came to the place of occurrence after the incident, thereby corroborating the testimony of his mother in this regard.
35. Haydar Hussain Laskar, the Investigating Officer of the case, who was posted at Lala P.S. at the relevant time, deposed as PW-18. He has stated about the investigation of the case and upon completion thereof submitting charge-sheet, which he has exhibited as Exhibit P-14 and his signature thereon as Exhibit P-14(1). One important aspect of his testimony is regarding his seizure of one Dao, one nylon rope, one blood- stained cap, white coloured curtain and one motorcycle bearing No. AS- 11-B-6242. He proved as Exhibit-2, 3, 4 and 5, the seizure in respect of these articles and Exhibit-2(4), 3(4), 4(4) and 5(2) as his signatures thereon. The testimony regarding the seizure is supported by PW-2, eyewitness, who has stated about police seizing blood-stained white half- ganji, blood-stained lungi, blood-stained white punjabi vide Exhibit-2 seizure list.
PW-3 has also stated about seizure by the police of such blood- stained clothes by Exhibit-2 seizure list and he proved his signature thereon as Exhibit 2(2). During deposition, he proved as in Material Exhibit-1, the box containing these blood-stained clothes.
PW-10, the vital eyewitness also supported the seizure of blood- stained clothes by the police. Thus, on the basis of this evidence, we find that the prosecution has been successfully in proving the seizure of the blood-stained clothes by the police as testified to by the IO of the case.
36. As mentioned about, the IO of the case has also testified about Page No.# 17/27 seizing a Dao during its investigation. In this regard, the said Dao was also sent for forensic examination and Sankar Chandra Rabha, forensic official, adduced evidence as PW-17 regarding the forensic report. What emerges from his report is that after examining the blood-stained clothes and the wooden handle Dao with blood stains, he opined that the same gave positive test for human blood. The report was proved as Exhibit P-11 and his signature as Exhibit P-11(1). However, in cross-examination, he said that it cannot be said as to whom the blood stains belong, in the absence of DNA examination.
37. Regarding the Dao, it has emerged from the cross-examination of the I.O that he cannot say as to whether the Dao belongs to the accused and whether it was the weapon of offence. Both PW-7 Mujaidul Islam Barbhuiya and PW-15 Yahia Mazarbhuiya have stated about witnessing recovery of a Dao by the police from the house of Altaf Hussain, brother of the appellant. However, while PW-7 has merely stated that the police seized a Dao of approximately 2 cubic in length having blood stain; PW-15 on the other hand has stated that upon going to the house of Altaf Hussain, brother of the appellant, they found one of the houses under lock and key which was broken open and upon going inside noticed one Dao lying under a bed, which was seized by the police.
38. However, in cross-examination, PW-15 stated that the Dao was very much clean indicating that it did not have blood stains. One important aspect of testimony of PW-15 is that police also seized a religious cap having blood stain, one white colour curtain, one pair of nylon sandals from the house of the said brother of the appellant vide Exhibit-4 and he also proved his signature there on as Exhibit-4.
Page No.# 18/27
39. The learned counsel for the appellant has questioned the prosecution story regarding the presence of PW-10 at the place of occurrence. In support of its contention, the appellant's side has contended that PW-12 Sukur Ahmed Laskar in his cross-examination had stated that there were many people at the place of occurrence, but he did not find the owner of the pharmacy namely Altaf Hussain. However, as already discussed, Altaf Hussain Laskar, PW-10 claims to be an eyewitness to the entire incident and owner of the pharmacy near which and in front of which the incident took place.
40. With regard to the aforesaid contention of the appellant's side, we go back to the testimony of PW-10. We find that he has dispelled all the suggestions to the contrary regarding his presence at the place of occurrence, reiterating that at the time of the incident he was very much present there and that he witnessed the incident. PW-10 has stated in his testimony that after the incident many people started gathering and some of the people shifted the injured victim Islam Uddin to the hospital. He did not however indicate in his testimony as to whether he accompanied such the victim to the hospital. Nevertheless, as many people gathered at the place of occurrence - the mere statement of PW-12 that he did not notice/find PW-10 at the place of occurrence - would not have the effect of nullifying the cogent testimony of PW-10 about his presence at the place of occurrence and witnessing the entire incident. It is entirely possible that in the crowd he may have missed the presence of PW-10.
41. Thus, we hold that the statement of PW-12 in his testimony about not noticing PW-10 there when PW-12 reached the place of occurrence would not be fatal to the evidence of PW-10 about being a vital Page No.# 19/27 eyewitness to the incident.
42. Upon perusing the entire evidence on record, we find that the testimony of eyewitnesses PW-2 and PW-10 is cogent and unshaken and clearly implicated the appellant as being responsible for causing the death of Alim Uddin and causing serious injuries on the other victim Islam Uddin Laskar. The testimony of PW-10 is consistent with his statement before learned JMFC recorded during investigation. The medical evidence of the autopsy doctor lends vital corroboration to the ocular evidence regarding the nature of injuries on the dead body of the deceased and the manner in which it was said to have been inflicted as per medical opinion. The medical evidence of PW-14 with regard to the injuries on the injured victim Islam Uddin is also highly compatible with the ocular evidence.
43. PW-2, the eyewitness has testified about narrating the incident to his mother PW-1/informant and the same has been corroborated by PW-1 herself. The police seized blood-stained clothes and Dao from the house of the appellant's brother on the day of the incident itself in the evening and the seizure of the same has been duly proved by seizure witnesses and also testified to by the I/O himself. Several witnesses such as PW-3 Jahangir Laskar, PW-6 Nasir Uddin Barbhuiya, PW-11 Nazim Uddin Choudhury, PW-12 Sukkur Ahmed Laskar, PW-15 Yahia Mazarbhuiya, though not eye witnesses have reached the place of occurrence soon after and have stated about finding the victim Alim Uddin lying on the ground with cut injuries on his neck and lying dead and they also heard from people that the appellant had caused the incident. PW-8 Mobat Ali Laskar testified about seeing blood at the place of occurrence.
44. In the case of Ram Kumar Pandey (supra) relied upon by the Page No.# 20/27 appellant side, there were vital omissions in the FIR. However, in the instant case, a telephonic information has been received whereupon GDE 625 dated 26-07-2015 was made and subsequently in the formal FIR lodged soon after by the wife of the deceased, details have been narrated. Though the informant PW-1 was not an eyewitness, the narration implicates the appellant and corroborates the testimony of the eyewitnesses. As PW-1 was not an eyewitness, the FIR appears to have been made on the basis of what was reported to her by the eyewitnesses. In this regard as already discussed earlier PW-2, one of the eyewitnesses and who is the son of PW-1 has testified about reporting about the incident to his mother and PW-1 has also corroborated the same. Therefore, in our considered opinion the decision in Ram Kumar Pandey (supra) would not be of assistance to the appellant side.
45. For the same reason, the decision in Nazim (supra) would also not be of assistance to the appellant side. Moreover, the said decision is one based on circumstantial evidence, while in the instant case, the testimony of the two eyewitnesses have been found to be acceptable and has been rightly accepted by the learned trial court.
46. In Kashi Ram (supra), the recoveries were not accepted by the High Courts and this was upheld by the Hon'ble Supreme Court. In the instant case, though the dao has been recovered during the investigation and prosecution witnesses including the I/O have testified regarding the same, but it has emerged from the testimony of the I/O himself that its linkage as the weapon of offence could not be surely proved. Regarding the recoveries of the blood stained clothes etc. as already discussed above, we have not found any infirmities regarding the seizure of the Page No.# 21/27 same and the seizure evidence in the instant case only lends corroboration to the ocular and medical evidence.
47. In Gobind Mandavi (supra) in the relevant paragraphs pointed out by the learned appellant counsel during the hearing, there was a discussion of TIP which is not relevant to the instant case and also about omission in the FIR which aspect has already been discussed above. The aforesaid decision proceeds on a different territory and does not come to the assistance of the appellant side in the instant case. The decision in Thulia Kali (supra) also inter alia discusses about the importance of prompt lodging of information and delay causing possible subsequent embellishments in the allegations. However, in the instant case, the telephonic information which was received initially was given by an unnamed person over a phone, about the killing of one person by dao and of causing severe injury to the father of the assailant. The FIR was lodged on the same day by the wife of the deceased incorporating the details and we have - in view of the testimony of the eyewitnesses and also the testimony of the informant - not found either any vital omission in the information given to police or any significant embellishments. The FIR was lodged by the wife of the deceased upon being reported about the incident by her son PW-2 who was an eyewitness to the incident.
48. The decision in Sujit Biswas (supra) also pertains to vital omission in FIR and because of the preceding discussion, it would not be of assistance to the defence in this appeal. The decision in Aminur Islam (supra) is also not of much help to the appellant side in taking a contrary view to the finding recorded by the trial court. Ravinder Kumar (supra) relied upon by the prosecution, discusses the issue of delay in lodging the Page No.# 22/27 FIR. However, in the instant case, the FIR has been lodged on the same day within a few hours of the ghastly incident and therefore such a purported delay would, in our considered opinion be no delay at all. The relevant paragraph 14 of Ravinder Kumar may be reproduced herein below -
"14. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
49. In Naresh (supra), the Hon'ble Supreme Court has reiterated the well settled principle that mere relationship would not per se affect the credibility of the witness. The relevant paragraph 29 may be reproduced herein -
"29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the Page No.# 23/27 ground of his relationship with the victim of the offence. The plea relating to relatives evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh, Vishnu v. State of Rajasthan and Balraje-.)"
50. In this case, though one of the vital eyewitnesses is the son of the deceased and informant is the wife of the deceased but their testimony as well as the testimony of the other eyewitness PW-10 have been found to be cogent and acceptable, more importantly the ocular evidence of PW-2 and PW-10 find material corroboration from the medical evidence.
51. In T.T. Anthony (supra), the Hon'ble Supreme Court has referred to multiple informations regarding the incident received by the police and held that one of them would be the FIR/first information and the remaining could be statements falling under section 162 CrPC. The relevant paragraph 18 may be reproduced herein -
"18. An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (FIR) though this term is not used in the Code. It is Very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Sections 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a Page No.# 24/27 police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr. P. C. apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the First Information Report - F.I.R. postulated by Section 154 of Cr. P. C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr. P.C. No such information statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P. C. Take a case where an FIR mentions cognizable offence under Sections 307 or 326 1.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular, in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr. P. C. as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that Page No.# 25/27 investigation is being directed against the person suspected to be the accused."
52. In the instant case even if the formal FIR is taken as a statement under section 161 CrPC and not used for corroboration of the maker, still the prosecution case remains intact and strong inasmuch as there is cogent testimony of the eyewitnesses and one of them has also stated on similar lines in the statement before Magistrate recorded during the investigation.
53. At the cost of repetition, it is stated again that the ocular evidence finds material corroboration from the medical evidence and the ocular and the medical evidence in the instant case corroborate and lend strength to one another and thereby satisfying our judicial conscience regarding the factum of the incident and the involvement of the appellant therein. The recording of the cryptic information given to the police about the incident and the subsequent lodging of the formal FIR by the wife of the deceased would not in our considered view cause any material infirmities of any fatal nature in the prosecution case.
54. Upon appreciating the prosecution evidence, we are of the opinion that there is no reason to disbelieve the cogent testimony of eyewitnesses PW-2 and PW-10 which also find due corroboration from the medical evidence of PW-13 and PW-14. This evidence along with the evidence regarding the seizure, the testimony of witnesses about finding the victim lying dead at the place of occurrence and being reported by people there regarding the involvement of the appellant leaves no room for doubt that it is none but the appellant who was responsible for causing the fatal injuries on deceased Alim Uddin Laskar and causing serious injuries on Page No.# 26/27 Islam Uddin Laskar, who subsequently died during the trial.
55. Thus, we do not find any infirmity in the conviction of the appellant under section 302 IPC. Considering the nature of injuries sustained by the other victim Islam Uddin due to the assault by the appellant, the conviction of the appellant under Section 326 IPC is also upheld.
56. PW-14, the M.O testifying regarding the injuries of Islam Uddin has not only categorized the injuries on victim Islam Uddin as grievous but also stated that a person can die due to such injuries. Considering the manner of assault revealed by the prosecution evidence and the nature of injuries sustained, as revealed by the medical evidence - it is clear that if death had taken place immediately as a result of such assault and injuries, the appellant would have been guilty of murder and hence, he has also been rightly convicted under section 307 IPC.
57. Thus, the conviction of the appellant under Section 302/307/326 IPC is hereby upheld and confirmed. The appellant has been sentenced to life imprisonment for his conviction under Section 302 IPC along with fine of Rs.20,000/- with default stipulation; he has been sentenced to undergo R.I. for 10 years and fine of Rs.10,000/- with default stipulation for conviction under Section 307 IPC; he has been sentenced to undergo rigorous imprisonment for five years and fine of Rs.5,000/-, with default stipulation for conviction under Section 326 of IPC.
58. While keeping the prison sentences intact, we are inclined to make a modification with regard to the fines, considering that the appellant has been sentenced to life imprisonment.
59. Therefore, the fine imposed for each of the three penal sections, is Page No.# 27/27 reduced to Rs.1,000/- each and the default stipulation for each of the three fines shall be R.I. for one month. Thus, the sentences are summarized as follows:-
60. For conviction under Section 302 IPC, appellant is sentenced to undergo imprisonment for life and fine of Rs.1,000/- (In default, R.I. for one month). For conviction under 307 IPC, appellant is sentenced to undergo R.I. for 10 years and fine of Rs.1,000/- (in default, R.I. one month). For conviction under Section 326 IPC, he is sentence to RI for five years and fine of Rs.1,000/- (in default for RI one month). The sentences shall run concurrently.
61. Accordingly, the impugned judgment dated 04.01.2024 passed by learned Sessions Judge, Hailakandi in Sessions case No. 02/2017 is upheld and confirmed. The order of sentence vide order dated 06.01.2024 is modified with to the fine, as indicated above.
62. The appeal stands dismissed subject to the above modification in the fines.
63. Send back the original TCR.
JUDGE JUDGE Comparing Assistant