Gauhati High Court
Babul Ali @ Babu vs The State Of Assam on 6 May, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/23
GAHC010190372020
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/104/2020
BABUL ALI @ BABU
BARPETA, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. B PRASAD, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM, MR D DEKA (R-2),MR N J KUMAR (R-2),MR. R A
CHOUDHURY (R-2)
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT
Date : 06-05-2025 (S.P. Khaund, J) Heard Mr. B. Prasad, learned Amicus Curiae for the appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam assisted by learned counsel Ms. R. Das.
Background facts :-
Page No.# 2/23
2. This appeal is directed against the judgment and order dated 22.01.2020 passed by the learned Additional Sessions Judge, Barpeta, in connection with Sessions Case No. 188/2016 (arising out of G.R. Case No. 7091/2014) convicting Babul Ali @ Babu (hereinafter also referred to as the appellant or the accused) under Section 302 of Indian Penal Code, 1860 (IPC for short) and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- (Rupees One Thousand) with default stipulations.
3. The genesis of the case is that on 27.10.2014 at about 2:30 pm, the 8 year old victim Minuwara Begum was playing in front of the appellant's house, when suddenly the appellant attacked her with a sharp weapon causing several injuries on her body. Minuwara (hereinafter referred to as the deceased or the victim) was shifted to Barpeta Hospital for treatment but unfortunately, she died on her way to Hospital. The appellant went into his house for shelter but the villagers surrounded his house and caught him along with the weapon of offence. An FIR regarding this incident was lodged by Minuwara's father Rajat Ali (informant) which was registered as Barpeta Police Station Case No. 3052/2014 under Section 302 of IPC and the Investigating Officer (IO for short) was entrusted with the investigation.
4. The IO went to the place of occurrence and recorded the statements of the witnesses and seized the weapon of offence and arrested the appellant. He made preparations for inquest and forwarded the body for autopsy and on conclusion of investigation, laid charge sheet under Section 302 of IPC against the appellant. At the commencement of trial, charges were framed under Section 302 of IPC; read over and explained to appellant, who pleaded not guilty and claimed to be tried. To substantiate its stance, prosecution adduced evidence of 9 (Nine) witnesses and the defence cross-examined the witnesses to refute the charges.
5. On the incriminating circumstances projected by the prosecution witnesses, several questions were asked to the appellant under Section 313 of Code of Criminal Procedure, 1973 (CrPC for short). The plea of the appellant was of total denial. He did not tender any evidence in his defence.
Arguments for the Appellant :-
6. Learned counsel for the appellant laid stress in his argument that the informant is not an eye witness. It is not plausible that someone will attack a minor victim aged only 8 (Eight) Page No.# 3/23 years. No evidence of animosity between the appellant and any of the family members of the victim has surfaced, which may have prompted the appellant to act in such a manner. This case is fraught with discrepancies as the scribe who lodged the FIR was not made a witness. This is the reason why questions were asked by the Trial Court under Section 276(2) of CrPC when the evidence of the informant PW-1 was recorded.
7. Learned counsel for the appellant has drawn the attention of this Court to the question Nos. 6 and 7 asked by the Court to the PW-1 and his response.
8. The question No. 6 and the answer is :-
"Question 6 : At the relevant time what was doing by your daughter in the court yard of accused? Ans : At that time she was playing with the daughter of accused Sahnaj Begum."
9. The question No. 7 and the answer is :-
"Question 7 : Whether at that time there was any quarrel between your daughter and the daughter of the accused?
Ans : Yes, while they were playing there was a quarrel between them regarding playing material and they pull and push each other and assaulted to each other."
10. By highlighting the questions of the Court and the answers by PW-1, learned counsel for the appellant laid stress in his argument that PW-1 was half a kilometer away from the place of occurrence. It is further submitted that PW-2, Ambiya Begum is not an eye witness. She heard a commotion and came out from her house and saw a gathering in the courtyard of the appellant. She saw the appellant and the victim. The victim was injured and was bleeding. She was the first person to have reached the place of occurrence when the victim was found lying in an injured condition, but she did not witness the incident. Thus, the appellant deserves a benefit of doubt. PW-4, Monsher Ali and PW-5, Farida Khatun are the eye witnesses in this case. PW-4 is the brother of the victim (Monsher Ali). His evidence is not reliable as he was sleeping inside the house at the time of the incident. It is not plausible that after hearing the commotion he would be able to witness the incident. As he is an interested witness, he has given false evidence to rope in the appellant.
11. It is submitted that the seized dagger was not forwarded for forensic examination and this is another discrepancy in the evidence.
Page No.# 4/23
12. In his cross-examination, the IO has stated that he did not seize the victim's blood stained clothes. He did not lift the blood stained earth for forensic examination. The seizure list reveals that the weapon of offence seized in connection with this case is a khukuri whereas some of the witnesses have described the weapon of offence as a dagger. There is vast difference between a khukuri and a dagger, as a khukuri is serrated with 12 (Twelve) projections whereas a dagger has a smooth edge.
13. When the Medical Officer (MO for short) has described the wound as a clean cut wound, it could not have been caused by a khukuri and this lends a benefit of doubt to the appellant.
14. It is submitted by the learned counsel for the appellant that the evidence of PW-4 is contradictory to the evidence of PW-1 as PW-1 has stated that his son Manshur Ali came and took his daughter in a 108 vehicle to the hospital, whereas Monsher Ali as PW-4 has deposed that he pulled Minuwara from PW-1's lap and called a 108 vehicle over phone and took her to the medical college at Barpeta for her treatment. It is further submitted by the learned counsel for the appellant that the appellant was not identified in the dock. Learned counsel for the appellant has emphasized through his argument that PW-5, Farida Khatun has falsely stated that she has witnessed the incident because she reached the place of occurrence after 5-10 minutes.
15. Evidence of PW-7, Sahidul Islam depicts that the dao/khukuri was kept under a tin sheet by the appellant and this was seized in his presence, whereas Exhibit-5 clearly depicts that the dagger which was seized was kept under a salpeera (bedstead).
16. Learned counsel for the appellant laid stress in his argument that the GD entry has not been proved. It is also argued that the inquest was held on the following day. No motive or mens rea could be ascribed to the appellant.
Arguments for the State :-
17. Learned Additional Public Prosecutor, Assam Ms. B. Bhuyan laid stress in her argument that there is direct ocular evidence of two eye witnesses which cannot be ignored. It is further submitted that there appears to be no justified ground to bring up a false case against the appellant while both the appellant and the informant are neighbours as well as relatives.
Page No.# 5/23 It is submitted that the robust and overwhelming evidence against the appellant could not be refuted by the prosecution moreso, when there are two eyewitnesses in this case.
Findings of the Trial Court :-
18. It has been held by the learned Trial Court that the FIR was lodged by PW-1, Rajat Ali on the same day at about 2.30 pm, stating that on 27.10.2014 while his daughter was playing in front of the appellant's house, the appellant with a weapon like khukuri/dagger repeatedly attacked her. The victim slumped to the ground and she was taken to the hospital but she succumbed to her injuries. It has been specifically mentioned in the FIR that the appellant caused the fatal injuries and the appellant was confined inside his house by the villagers. The police came and arrested him and seized the weapon of offence from his house.
19. It was also held by the learned Trial Court that the seizure list (Exhibit-2) depicts that during investigation one khukuri measuring about 8 inches in length was seized by the police on 27.10.2014 from the place of occurrence (PO for short) and, PW-3 has clearly stated that police seized one khukuri in his presence and he has proved his signature on the seizure list as Exhibit - 2 (1). It was observed by the Trial Court that the Inquest Report, Exhibit-4 reveals the injury marks on the victim's back underarm, left hand and left shoulder and on different parts of her body. The inquest was indeed held on 28.10.2014 by PW-9, IO (Jamir Ali). It was held by the Trial Court that the doctor's evidence transpires that the doctor detected as many as 6 (Six) injuries on the body of the deceased and the injury number 1 was a punctured wound over back of the neck in mid line 4 cm above cervical C7 vertebrae. The margins of the wound were clean cut injuries and, injury Nos. 2 and 3 were detected to be penetrating injuries and, injury Nos. 4, 5 and 6 were incised wounds.
20. After scrutinizing the MO's evidence, it was held by the learned Trial Court that the injuries were indeed caused by khukhuri/dagger, (M.Ext.A.) as the khukhuri is a kind of instrument, which has pointed sharpness on the frontal side.
21. The learned Trial Court has also held that there was no reason to discard the evidence Page No.# 6/23 of victim's mother PW-5, Farida Khatun as well as the evidence of the seizure witnesses and the evidence of the IO. It has been established beyond reasonable doubt that the appellant committed the crime and he had no opportunity to escape from the PO. The Trial Court has considered the evidence of PW-1, Rajat Ali, which was also recorded with the aid of Section 276(2) of CrPC. Rajat Ali has stated that his daughter was playing with Sahnaj Begum, daughter of the appellant and they started quarreling and there was a scuffle between both the girls. The appellant's daughter was 8-10 years old and the informant's daughter was only 8 years old. Thereafter, the appellant came and attacked his daughter.
22. It was observed by the learned Trial Court that it has been stated in the FIR that the appellant dealt several blows with a sharp cutting weapon on the victim and she instantly fell down and succumbed to her injuries. The learned Trial Court has observed that the cross- examination of PW-1 clearly depicts that the appellant's house is adjacent to his house and his daughter used to play in his house regularly after school. It was held by the learned Trial Court that although PW-2 and PW-3 were declared as hostile witnesses, yet their evidence clearly depicts that Babul Ali was seen near the victim at about 2.30 pm. The victim was lying in the courtyard with injuries on her body. The evidence of the eye witnesses, PW-4 and PW- 5 could not be contradicted or controverted despite arduous cross-examination by the defence. It was held by the learned Trial Court that there remains no fraction of doubt that the barbaric and ghastly act of murder of a tender-aged girl, was committed by the appellant.
Evidence :-
23. To decide this case in its proper perspective, the evidence is re-appreciated. Razat Ali is the father of the deceased and he deposed as PW-1 that the incident occurred about 3-4 years back. He was pulling a rickshaw near his house, when he heard that his daughter was lying with bleeding injuries in the courtyard of the appellant. His wife Farida Begum was in the house. He immediately rushed to the place of occurrence and noticed that his daughter's condition was serious. Many villagers have already assembled. His son Manshur Ali, PW-4 also Page No.# 7/23 came to the place of occurrence and took his daughter in a 108 vehicle to the hospital, but unfortunately his daughter died on her way to the hospital.
24. At this juncture, the Court recorded the evidence of the informant, PW-1 under Section 276 (2) of the Cr.PC. Several questions were asked to this witness and the relevant questions are as follows:-
Question 2: At what distance the house of accused Babul Ali is situated ?
Answer: The house of Babul Ali is situated at a distance of about 50/60 feet only from my residence.
Question 3: What is the relation of accused with you?
Answer: Accused is the son of my brother.
Question 4: Do you have any quarrel with the family of accused?
Answer: We did not have any quarrel earlier.
Question 5: At what time the incident occurred?
Answer: it occurred at around 2 30 pm. Question 6: At the relevant time what was your daughter doing in the court yard of accused?
Answer: At that time she was playing with the daughter of accused Sahnaj Begum.
Question 7: Whether at that time there was any quarrel between your daughter and the daughter of the accused?
Answer: Yes, while they were playing there was a quarrel between them regarding playing material and they pull and push with each other and also assaulted to each other.
Page No.# 8/23 Question 8: What was the age of Sahnaj, the daughter of accused and age of your daughter at that time ?
Answer: Sahnaj was then 8 to 10 years and the age of my daughter was 8 years.
Question 9: With what instrument Sahnaj assaulted your daughter?
Answer: With the bowl made of glass.
Question 10: Who were present in the house of Babul Ali at that time?
Answer: At that time Babul Ali, his wife and his daughter Sahnaj were present.
25. In his cross-examination, PW-2 has deposed that he could not remember the date of the incident. He could not say what was written in the FIR and who had written the FIR which was not read over to him, but he lodged the FIR regarding the incident relating to his daughter. He has also stated that his daughter used to go regularly to play in Babul Ali's house after school. The children of the locality also used to play in Babul Ali's house. He has also mentioned in his cross examination that he has lodged this case against Babul Ali on suspicion and he heard that Babul Ali was not involved in the incident.
26. Ambiya Begum deposed as PW-2 that both the appellant and the informant are known to him. The incident occurred about 4 years back in front of Babul Ali's house at about 2/2:30 pm. While she was at home, she heard a commotion and came out of her house and noticed a gathering in Babul Ali's courtyard and she also noticed Minuwara Begum lying on the ground with bleeding injuries. Then, Minuwara was rushed to the hospital but she died in the hospital. The villagers caught Babul Ali for assaulting Minuwara. She did not witness the incident but she reached the place of occurrence immediately after the incident.
27. This witness was declared a hostile witness and the prosecution was allowed to cross Page No.# 9/23 examine it's own witness. When confronted by the prosecution, this witness has denied that when she reached the place of occurrence, she saw Babul Ali thrusting the dagger on the victim 2-3 times, and then she raised alarm, and then Farida, Runima, PW-3, Mirija and Manshur, etc, reached the place of occurrence and saw Babul Ali with a dagger in his hand rushing towards his own house.
28. In her cross-examination by the defense, this witness has stated that there was no animosity between Razat Ali and Babul Ali and their houses are adjacent to each other. She reached the place of occurrence after ten minutes and noticed the gathering in the appellant's house. She could not remember who informed her that the appellant assaulted the victim and what was the weapon of offence that was used to assault the victim. She has stated that the children of the locality used to play in front of the appellant's house.
29. Another witness Runima Begum deposed as PW-3 that the incident occurred about 3-4 years back. At about 2/2:30 pm, she heard a commotion from her house and reached the place of occurrence and saw Razat Ali (informant) carrying his injured daughter Minuwara on his lap. Then she took the victim in her lap and asked her about the incident. The victim was taken to the hospital but she later succumbed to her injuries. She has admitted that she mentioned before the police in her initial statement that when she heard Minuwara Begum screaming that Babul Ali hit her with a dagger, she rushed to the spot and saw Babul Ali attacking Minuwara with a dagger in his courtyard and Minuwara who was lying on the ground was wailing and she noticed bleeding injuries on her body. Meanwhile, the neighbour's arrived and Babul Ali went to his house and locked the door from inside. The villagers surrounded Babul Ali's (appellant's) house and took Minuwara to the hospital for treatment. In her cross-examination she has stated that she could not remember the date of the incident. There was no dispute between Razat Ali and Babul Ali. She reached the place of occurrence after five minutes.
30. The victim's elder brother, Manshur Ali(step brother) deposed as PW-4 that the incident Page No.# 10/23 occurred about 3-4 years ago at about 2/3 pm. He was sleeping in his house when he heard a commotion and came out of his house and saw Babul Ali ceaselessly thrusting the dagger into the victim's body. He then immediately called a 108 (ambulance) over phone and took away the victim from his father's lap and immediately took her to the Medical College at Barpeta. The victim was bleeding profusely and she has sustained 3/ 4 wounds on her body.
She was only 7 years old at the time of the incident.
31. PW-4 has further testified that after attacking the victim, the appellant entered into his own house with a dagger in his hand. The public assembled at the place of occurrence. Unfortunately, the victim was declared as brought dead by the doctor. After post-mortem examination, the body was handed over to them and they performed her last rites. It is testified that Minuwara used to play regularly with the appellant's daughter in front of his house. He could not remember the date of the incident as he was ailing and sleeping inside his house at the time of the incident. He saw the appellant holding the dagger but the police did not seize the dagger in his presence. He did not know from where the police seized the dagger.
32. The victim's mother, Farida Khatun, deposed as PW-5 and has stated that the incident occurred about 3-4 years back at about 1/2 pm. At that time, she heard a commotion emanating from the appellant's house and she rushed to the place of occurrence and noticed Babul Ali attacking her daughter Minuwara with a dagger and Minuwara lying in his courtyard. She noticed severe bleeding wounds on Minuwara's body. Babul Ali ran inside his house. Meanwhile, she became senseless and slumped to the ground. Many people assembled at the place of occurrence and Minuwara was immediately rushed to the Barpeta Medical College Hospital, but she died before she could reach the hospital. In her cross examination, she deposed that the children used to play in the courtyard of the appellant. She was in Tuina's house pounding rice at the time of the incident and reached the place of occurrence within 5- 10 minutes. She could not say who raised alarm and she could not remember if the police seized any object.
Page No.# 11/23
33. Another witness, Makbul Hussain, who works at FAAMCH in Barpeta, deposed as PW-6 that after duty, he was at home and he heard the commotion and rushed to the place of occurrence. Meanwhile, the police arrived at the spot. He along with one policeman, brought out Babul Ali from his house and the police took Babul Ali to the police station. The police also recovered a khukuri from Babul Ali's house which was seized in his presence. This witness has proved his signature as Exhibit-2(1). In his cross-examination, he deposed that he reached the appellant's house within 10 minutes of hearing the commotion. He could not recall if anything was written on the seizure list, but he could recall that he has affixed his signature. The seizure list was not read over to him by the police.
34. Another witness, Sahidul Islam, deposed as PW-7 that both the informant and the appellant are known to him. On the day of the incident, Boga Ali called him over phone and informed him that Razat Ali's daughter was killed by the appellant with a dagger. He immediately informed the matter to the Barpeta police station as a Secretary of the Majid Management Committee of the village. Then he along with the police went to the appellant's house which was surrounded by the public. He along with the police then entered into the appellant's house. Initially, the appellant denied about the incident, but on being confronted, the appellant showed the weapon of offence, dao/khukuri which was used to kill the victim. The weapon of offence was hid under a tin and as shown by the appellant, the dao/khukuri was seized by the police in his presence. He affixed his signature on the seizure list. He has proved his signature as Exhibit 2(2) on the seizure list. He has identified material Exhibit-A as the dao/khukuri recovered by the police from the appellant's house. In his cross-examination, PW-7 has deposed that he has affixed his signature on the seizure list and he has also read the contents of the seizure list. The dao was around 1.5 feet in length with a plastic like frame.
35. Dr. Nabajit Barman deposed as PW-8 that on 28.10.2014, he was serving as demonstrator of forensic medicine at FAAMCH. On that day, he performed post-mortem on Page No.# 12/23 the dead body of Minuwara @Mink Begum, 7 years old, a female in connection with this case and found the following :-
"1. A punctured wound of size 2 cm x 1 cm is present over back of the neck in mid-line 4 cm above cervical C7 vertebrae. The margins of the wound are clean cut.
2. A penetrating wound of size 3.5 cm x 2 cm x thoracic cavity deep is present over back of left side of the chest 4 cm away from mid-line and 17 cm below cervical C7 vertebra The margins of the wound are clean cut.
3. A penetrating wound of size 3 cm x 0.5 cm is present over back of right side of the chest 5 cm away from mid-line and 15 cm below C7 vertebra. The margins of the wound are clean cut.
4 An incised wound of size 5 cm x 2 cm is present over back of left shoulder joint The margins of the wound are clean cut.
5 An incised wound of size 15 cm x 5 cm is present over lateral aspect of left side of the chest extending from 9 cm away from mid-line in front up to back of the chest 12 cm away from mid-line at the back. The margins are clean cut.
6 An incised wound of size size 2 cm x 0.5 1 x 0.5 cm is present over lateral aspect of left thigh 3 cm above the knee joint."
36. He has further deposed that he has wrongly written the date as 28.11.2014 instead of 28.10.2014 due to oversight. He has opined that death was owing to haemorrhagic shock as a result of injuries sustained as described. All injuries were ante mortem in nature and caused by pointed sharp-cutting weapon and homicidal in nature. Time since death was 12-24 hours approximate. He has stated that it was a clear case of brutal murder. He has proved his signature on the post-mortem report as Exhibit 3(1). In his cross-examination, he has affirmed that it is very unlikely that the injuries may have been caused by falling over broken glasses.
Page No.# 13/23
37. The I.O., Jamil Ali deposed as PW-9 that on 27.10.2014, while serving as S.I. at Barpeta police station, the O.C. entrusted him to investigate a case after receiving information over phone, and after registering GD Entry No. 1070 dated 27.10.2014. He, PW-9 went to the place of occurrence and noticed that the villagers have kept the appellant confined in his house. He arrested the appellant and seized a dagger from under the bed of the appellant vide MR No. 333/2014 dated 27.10.2014, in presence of Makbul Hussain, PW-6 and Sahidul Islam, PW-7. He took down their signatures as Seizure witnesses. He has identified the dagger in the Court as material Exhibit-A and he has proved his signature on the seizure list as Exhibit-2(3). PW-9 has further deposed that he prepared the sketch map. He recorded the statements of the witnesses and forwarded the accused for treatment as he was also assaulted. The victim was shifted to the Barpeta FAAMCH for treatment, but she died in the hospital. The victim's father lodged the FIR marked as Exhibit 1. He identified the signature of the O.C., Amit Kalita, as Exhibit - 1(1), with which he is acquainted, being a colleague. On completion of investigation, he laid charge sheet against the appellant under Section 302 of the IPC. He has proved his signature on the sketch map as Exhibit 5(1) and Exhibit 6(1) on the charge-sheet.
38. In his cross-examination, the I.O. i.e., PW-9 has deposed that he did not seize the blood-stained garment of the victim or forward any blood-stained earth for chemical examination. He did not examine the scribe of the FIR, and not a single witness was forwarded by him to the Magistrate for recording their statements under Section 164 of the CRPC. He has also not recorded the statements of Taxil Ali and Kasim Ali.
Discussions and Decision :-
39. This is an open and shut case. There are three eyewitnesses in this case. The I.O. was cross-examined in extenso, but no contradictions could be elicited as per Section 145 of the Indian Evidence Act, 1872, (The Evidence Act, for short), qua Section 162 of the CRPC. Thus, it is apparent that all the witnesses have been consistent. Their evidence is similar to their Page No.# 14/23 initial statement before the I.O. Although the learned counsel for the Appellant tried to dissect the evidence, the account of the eyewitnesses holds the appellant guilty of the offence of murder. The arguments forwarded by the Learned Counsel for the Appellant holds no water. It has been argued by the Learned Counsel for the appellant that PW-1 has deposed that when he reached the place of occurrence, the villagers were present and his son Manshur Ali also came and took his daughter in a 108 (ambulance) to the hospital. It is further argued by the learned counsel for the Appellant that, on the contrary, PW-4 has deposed that he pulled his sister from his father's lap and took her to the Barpeta Medical College for treatment, whereas PW-1 has stated that his daughter was lying in the courtyard of Babul Ali with bleeding injuries. This argument of the learned counsel for the Appellant can be safely brushed aside.
40. It is not plausible that as soon as the commotion is heard, the sequence of the incident will be aptly described by each and every witness. Each and every witness has his own perception and the manner in which he will perceive the incident and relay it to the I.O., and the Court. The sequel of events described by each witness cannot fit like hand in glove. The learned counsel for the Appellant further emphasized through his argument that the scribe of the FIR was not examined as a witness and the FIR has not been supported by PW-1 as he has stated that he could not remember who wrote the FIR. PW-1 has also stated that the FIR was not read over to him. However, the cross examination of the PW-1 clearly depicts that the FIR was regarding the incident about his daughter. Thus, it is clear that it was within the knowledge of PW-1 that the FIR was relating to the death of his daughter and no discrepancy is discernible.
41. The argument of the learned counsel for the Appellant relating to the cross examination of PW-1 that FIR was lodged on suspicion can be simply brushed aside. A Court has to assess the cross examination conducted by an astute lawyer very carefully. When the evidence is as clear as crystal and when all the witnesses have given evidence against the appellant that he has committed the murder, such cross examination cannot give flight to imagination that the FIR was lodged on suspicion. The evidence has to be assessed diligently and rationally and Page No.# 15/23 not on nuances and fanciful views. Relating to the weapon of offense the injuries have been described by the medical officer as clean-cut injuries and the dao/khukuri has been identified by an independent witness, PW-7 as material Exhibit-A as well as the I.O. as material Exhibit- A.
42. It is submitted by the learned counsel for the appellant that the khukuri according to the seizure list is a jagged weapon and cannot cause clean-cut injuries. This hypothetical viewpoint can be safely brushed aside. The exhibit-5 reveals the description of the seized dagger as 18 inch long khukuri (machete/knife). The handle seems to be made of plastic. The upper portion of the khukuri contains 12 teeth similar to that of a saw. Thus, it is clear that only the upper portion was serrated and jagged whereas the remaining part of the khukuri which is also described as a machete or a knife was smooth. Thus the argument that the weapon of offence seized in connection with this case could not have caused the clean-cut injuries sustained by the victim can be ignored. It has to be borne in mind that PW-7 has categorically stated that the seized dao was around 1.5 feet long with a plastic like frame which has been clearly described in the seizure list as the plastic handle. It has also to be borne in mind that each and every witness may not be able to name a khukuri as a khukuri and this is the reason why some people have described it as a dao and some witness have described it as a dagger and some of the witnesses have stated the weapon of offense to be a khukuri.
43. Even the argument that the place from where the dagger was seized appears to be contradictory can be safely brushed aside. The evidence of the seizure witnesses PW-6 and PW-7 clearly depicts that the khukuri/dao/machete was seized from the appellant's house. The appellant hid the dao under a tin according to PW-1 and under his bed according to PW-
9. The fact that the dao was seized from the appellant's house has not been refuted even through vigorous cross examination of the witnesses. PW-4 has categorically stated that the appellant ran into his house with the dagger in his hand. Both PW-4 and PW-5 have witnessed the incident and they have Page No.# 16/23 stated that the appellant dealt several blows with the dagger on the 7 year old victim Minuwara and with this dagger the appellant ran into the house. This dagger was recovered by the police in presence of PW-6 and PW-7. Both PW-6 and PW-7 have proved their signatures on the seizure list as exhibit 2(1) and exhibit 2(2) and PW-9 has proved his signature on the seizure list as exhibit 2(3).
44. The argument of the learned counsel for the appellant that PW6's cross-examination does not prove the seizure of khukuri as he deposed that he could not remember whether the seizure list was written or not can be dismissed, as PW-6 has stated that he has affixed his signature on the seizure list after recovery of the dao/khukuri.
45. Learned counsel for the appellant has relied on the decision of the Hon'ble Supreme Court in Ashok Kumar Singh Chandel and others vs. State of UP and others reported in MANU/SC/1433/2022 wherein it has been observed that :-
"76. Following the Constitution Bench, this Court in Ghurey Lal v. State of U.P. MABY/SC/3223/2008 :
(2008) 10 SCC 450 has formulated the following principles:
69. The following principles emerge from cases
1. The Appellate Court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The Accused is presumed innocent until proven guilty. The Accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision.
This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal Page No.# 17/23 if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
i. The trial court's conclusion with regard to the facts is palpably wrong; ii. The trial court's decision was based on an erroneous view of law; iii. The trial court's judgment is likely to result in "grave miscarriage of justice"; iv. The entire approach of the trial court in dealing with the evidence was patently illegal;
v. The trial court's judgment was manifestly unjust and unreasonable; vi. The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the ballistic expert, etc. vii. This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/Appellate Courts must rule in favor of the Accused."
46. Reverting back to this case, it is held that the ratio of the decision of the Hon'ble Supreme Court in Ashok Kumar Singh Chandel (supra) is not applicable to this case. It has been argued that there are two eye witnesses in this case but if we carefully scrutinize the evidence, it is noticeable that there are three eye witnesses in this case.
47. PW-3 has admitted that she has mentioned in her initial statement before the IO that when she heard Minuwara Begum screaming that Babul Ali had hit her with a dagger, she rushed to the spot and she saw Babul Ali attacking Minuwara with a dagger in his courtyard and Minuwara, who was lying on the ground, was wailing and she noticed bleeding injuries on her body. This initial statement before the IO is not taken into consideration although she was not declared a hostile witness. It is not clear if this is a part of cross-examination of the prosecution to its own witness. The evidence of the victim's elder brother Manshur Ali, PW-4 and the victim's mother Farida Khatun, PW-5 is direct oral evidence as per Section 60 of the Page No.# 18/23 Indian Evidence Act, 1872.
48. Thus, it can be safely held that when the evidence is robust against the appellant, the Trial Court's decision was not based on any erroneous view of law. It is unlikely that the Trial Court's judgment would result in grave miscarriage of justice. The Trial Court's approach in dealing with the evidence is not patently illegal to be set aside. The Trial Court's judgment is not manifestly unjust and unreasonable. The Trial Court has recorded sound reasonings and the evidence was properly assessed.
49. The learned counsel for the appellant has also relied on the decision of the Hon'ble Supreme Court in State of Punjab vs. Jagir Sing, Baljiy Sing and Karam Singh reported in (1974) 3 SCC 277 wherein it has been held that :
"23. A criminal trial is not like a fairy tale wherein one in free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon' its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
50. In the instant case, the ratio of the decision of the Hon'ble Supreme Court in Jagir Singh's case (supra) is indeed applicable. This is also a case where there was no animosity between both the parties. Both the parties are related to each other. The appellant does not deserve a benefit of doubt as the evidence is ex facie trustworthy.
51. The learned Additional Public Prosecutor has relied on the decision of the Hon'ble Supreme Court in Veerendra v. State of Madhya Pradesh reported in AIR 2022 Supreme Court 2396 wherein it has been observed that :-
Page No.# 19/23 "28. In view of the nature of the provision under Section 53A Cr.P.C and the decisions referred (supra) we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances forms a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour."
52. By referring to the decision of the Hon'ble Supreme Court, learned Additional Public Prosecutor has submitted that although no blood stained earth was lifted or blood stained clothes were forwarded for forensic examination, the account of the eye witnesses clearly depicts that the appellant relentlessly dealt blows after blows on the minor victim X with the weapon of offence. This weapon of offence was indeed recovered as led to the recovery by the appellant. There is overwhelming evidence that the appellant led the investigating team into his house and he brought out the weapon of offence, from under the bed, before the team and this was seized in presence of the seizure witnesses.
53. Further referring to the decision of the Hon'ble Supreme Court in Veerendra's case (supra), learned Additional Public Prosecutor has drawn the attention to paragraphs 35 and 35.1 wherein it has been held that :-
"35. In Dalip Singh and Ors. v. State of Punjab reported in AIR 1953 SC 364, wherein four persons appealed against sentences of death imposed on them for conviction for a double murder, this Court held :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we Page No.# 20/23 are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
35.1. In Khurshid Ahmed Vs. State of Jammu & Kashmir [(2018) 7 SCC 429: (AIR 2018 SC 2457)], this Court while setting aside the order of acquittal and convicting the accused (the respondent therein) for charges under Section 302, 341 IPC, held that there could be no preposition in law that relatives ought to be treated as untruthful witnesses. On the contrary reason has to be shown when a plea of partiality is raised to show that the witness had reason to shield actual culprit and falsely implicate the accused, it was further held. In this case there is an added reason. PW-2 is also equi-related to the appellant-convict. The accused is his nephew. Therefore, the question is why should such a person who lost the granddaughter implicate his nephew in the case. The suggestion that he had a clash with the appellant was repudiated by him and still, no evidence to establish that suggestion was produced by the appellant. A suggestion to a witness when repudiated can have no relevance at all in the absence of any material produced, in accordance with law, to prove the factum suggested, certainly, subject to admissibility. Hence, the said suggestion is impactless and inconsequential. Taking note of the nature of the contention raised against the testimony of PW-2, that he is related to the deceased, it is apposite to refer to another aspect. Noticeably, the appellant has taken up a contention in respect of the seizure/recoveries, involved in this case, that non-examination of Sri. Ganesh, the father of the deceased, is fatal to the prosecution as he being the other attesting witness to most of such documents. This would reveal the paradox and hollowness in the contentions of the appellant inasmuch as, he would contend that PW-2 being a relative of the deceased another independent witness ought to have been examined to prove the seizures and recovery and in the same breath he would raise contention against the non-examination of the father of the deceased to prove the same. In this regard it is relevant to note the position of law that evidence is only to be weighed and not to be counted and that it is essentially, for the prosecution to decide as to how many witnesses are to be examined to establish its case on any particular point. In this case the version of PW-2 as relates the fact that the deceased was lastly seen with the appellant would get support from the oral testimony of PW-4 Pappu @ Patiram. The evidence of PW-4 and the fact that nothing was elicited from PW-2 to discredit his version that the appellant was following the deceased there was no reason to disbelieve PW-2 on that issue. In short, there is no reason to mistrust the said material witnesses on the point that the deceased was lastly seen with the appellant as concurrently held by the trial Court and the High Court."
54. Reverting back to this case, it is held that the testimony of the victim's brother and her mother cannot be disbelieved merely because they are related to the victim. Thus, the evidence of PW-4 and PW-5 prove beyond a reasonable doubt that the appellant committed the murder of the victim. There was no animosity between the appellant and the deceased's father. The evidence of PW-1 clearly reveals that the daughter of the appellant and the informant's daughter had a quarrel and the victim was attacked by the appellant's daughter and thereafter, this incident occurred after the fight between the children, when the appellant Page No.# 21/23 came and attacked the victim with the weapon of offence.
55. In this case too, there appears to be no justification as to why the perpetrator would be shielded and another person would be blamed in a moment of truth like this. A child has been killed and the relatives indeed cannot be treated as unreliable witnesses.
56. It has surfaced from the evidence of the witnesses that the appellant and the victim's father are related and their houses are adjacent. The appellant's daughter and the informant's daughter used to play regularly. The victim used to come to the appellant's courtyard and used to play with his daughter regularly. Other children also used to play in front of the appellant's house. The fight between both the appellant's daughter and the informant's daughter took place in the appellant's courtyard. Several questions were asked to the informant, PW-1 under Section 276 (2) of CrPC and to question No. 8 and question No. 9, the informant replied that the appellant's daughter assaulted his daughter with a glass bowl. To question No. 7, the informant answered that at the time of the incident there was a quarrel between his daughter and the appellant's daughter. The children were playing in the afternoon after school. The time of incident was around 2.30 to 3.00 pm. when the appellant, who is also related to the informant, armed with a dagger/khukhuri attacked the victim. To question No. 3 by the Court, PW-1 has answered that the appellant is his nephew.
57. PW-4, victim's elder brother has categorically stated that the victim used to play regularly in front of the appellant's house. PW-1, 2, 3 have stated that there was no animosity between the appellant and the victim's father (PW-1).
58. It has surfaced from the evidence that children were playing at the time of the incident at around 2.30 pm. Unfortunately, at that time an alarm was raised by Minuwara Begum and the witnesses heard the commotion and rushed to the place of occurrence. PW-2 and PW-3 saw the appellant near the victim who was lying on the ground and was bleeding profusely. PW-4 went out and saw the appellant attacking his sister with the weapon of offence. PW-5 Page No.# 22/23 also went out and saw the appellant attacking her daughter Minuwara and stabbing her with a dagger. PW-1 also reached the place of occurrence. Then, the victim was immediately shifted to the hospital but she succumbed on her way to hospital. PW-6 witnessed the seizure of the khukuri vide Exhibit - 2. PW-7 has also identified the weapon of offence as Material Exhibit - A and so, did PW-9. The evidence of PW-4 and 5 clearly reveals that the appellant immediately ran into his house after attacking the victim with a dagger. The appellant held the dagger in his hand while running into his house. The evidence of PW-6, PW-7 and PW-9 clearly reveals that this dagger was seized from the appellant's house. The minor victim has sustained several stab wounds.
59. In the wake of the foregoing discussions, it is thereby held that the overwhelming evidence proves beyond all reasonable doubt that the appellant committed murder by intentionally causing the death of the victim. We, hereby record our concurrence to the decision of the learned Trial Court. The judgment and order dated 22.01.2020 passed by the learned Additional Sessions Judge, Barpeta in connection with Sessions Case No. 188/2016 is hereby upheld.
60. Appeal is dismissed as it is devoid of merits.
61. Send back the Trial Court Records.
62. We appreciate the assistance provided by the learned Amicus Curiae and recommend for payment of the honorarium.
JUDGE JUDGE
Page No.# 23/23
Comparing Assistant