Gauhati High Court
Md. Fakar Uddin Barbhuiya And Anr vs The State Of Assam on 18 January, 2019
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
Page No.# 1/16
GAHC010066652010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 48/2010
1:MD. FAKAR UDDIN BARBHUIYA and ANR,
2: MD. FAZAL BARBHUIYA
BOTH ARE SONS OF LATE SAFIQUR RAHMAN BARBHUIYA
R/O VILL. RAMNAGAR
TARAPUR PART-VI UNDER SILCHAR POLICE STATION IN THE DIST. OF
CACHAR ASSAM
VERSUS
1:THE STATE OF ASSAM,
Advocate for the Petitioner : MS.P SHARMA
Advocate for the Respondent :
Linked Case : Crl.Rev.P. 196/2010
1:NUR NAHAR BEGUM
W/O LT. AKIASH UDDIN MAJARBHUIYA
VILL- RAMNAGAR PART-VI
P.O. RAMNAGAR PART-VI
P.O. TARAPUR DIST. CACHAR
VERSUS
1:THE STATE OF ASSAM AND ORS
2:AMIR UDDIN MAZARBHUIYA @ LASKAR
Page No.# 2/16
S/O TAJAMUL ALI MAZARBHUIYA
VILL- RAMNAGAR PART-VI
P.O. TARAPUR P.S. SILCHAR
DIST. CACHAR ASSAM.
3:HUSSAIN AHMED @ LASKAR
S/O ALLA UDDIN LASKAR VILL- RAMNAGAR
PART-VI
P.O. TARAPUR P.S. SILCHAR
DIST. CACHAR ASSAM.
4:FAIZUR @ FAZU RAHMAN BORBHUIYA
S/O SAFIQUE RAHMAN BARBHUIYA
VILL- RAMNAGAR
PART-VI P.O. TARAPUR
P.S. SILCHAR DIST. CACHAR
ASSAM.
5:AJIM UDDIN @ BORBHUIYA
S/O MAYUR BORBHUIYA VILL- RAMNAGAR
PART-VI
P.O. TARAPUR P.S. SILCHAR
DIST. CACHAR ASSAM.
6:JYOTI LASKAR @ SIDDEK AHMED
S/O ALIM UDDIN LASKAR VILL- RAMNAGAR
PART-VI
P.O. TARAPUR P.S. SILCHAR
DIST. CACHAR ASSAM.
Advocate for the Petitioner : MR.J LASKAR
Advocate for the Respondent : MS.S CHOUDHURY
Linked Case : Crl.A. 85/2010
1:THE STATE OF ASSAM
VERSUS
1:AMIR UDDIN MAZARBHUYA and 4 ORS
S/O TAZAMUL ALI MAZARBHUYAN.
2:AZIM UDDIN BARBHUYAN
S/O MAIBUR RAHMAN BARBHUYAN
Page No.# 3/16
3:HUSSAIN AHMED LASKAR
S/O ALLA UDDIN LASKAR.
4:FAIZUR @ FOZU RAHMAN BARBHUYAN
S/O SAFIQUR RAHMAN BARBHUYAN.
5:SIDDEK AHMED LASKAR @ JYOTI
S/O ALIM UDDIN LASKAR
ALL ARE THE R/O RAMNAGAR
P.S. SILCHAR DIST. CACHAR
ASSAM.
Advocate for the Petitioner : MR. N K KALITA( ADDL. PP
ASSAM )
Advocate for the Respondent : MR.A M BORA
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT
Date : 18-01-2019 Mir Alfaz Ali, J.
1. By this common judgment, we propose to decide the Crl. A. No. 48/2010, Crl. A. No. 85/2010 and Crl. Rev. P. 196/2010, as the above appeals and the revision petition arose from the same judgment passed by the learned Addl. Sessions Judge, FTC, Cachar, Silchar in Sessions Case No. 80/2006. BY the said judgment, learned Addl. Sessions Judge convicted the appellants in Crl. A. No. 48/2010 under Section 302/325 IPC and sentenced them to imprisonment for life and fine of Rs. 5000/- with default stipulation under Section 302 IPC. They were further sentenced to imprisonment for 2 ½ years and fine of Rs. 1000/- each with default stipulation under Section 325 IPC each. By the judgment impugned, learned Sessions Judge acquitted the co-accused persons and the Crl. A. No. 85/2010 and Crl. Rev. P. NO. 196/2010 were filed against the order of acquittal.
2. As per the prosecution case, on 17.10.2000 at about 10 PM, while the victim Alkas Page No.# 4/16 Uddin Mazarbhuya was returning home from Silchar by a scooter with his wife (PW-4) as pillion rider, the accused Amir Uddin along with a group of persons severely assaulted the victim Alkas Uddin causing grievous injuries to him. PW-8 Abdul Malik Hazari, son-in-law of the victim, who came forward to save the victim was also thrashed by the miscreants. Immediately after the occurrence, police arrived and the victim was shifted to hospital, where he succumbed to the injuries. PW-4 lodged the FIR (Ext.2) on the next day. On the basis of the FIR (Ext.2), Silchar P.S. Case No. 1345/2000 under Sections 147/148/149/341/326/325/302 IPC was registered. During investigation, inquest report of the dead body was prepared by S.I. Chinmoy De (PW-10) and the postmortem examination was conducted by Dr. Gunajit Das (PW-
11).
3. Dr. Gunajit Das, who conducted the postmortem examination found the following injuries on the body of the victim.
"1. Diffused bruise over whole of right and left forearm, medial aspect of right arm, lateral aspect of left arm and upper end of right leg. (2) Multiple linear bruises placed at different planes over the whole of the front of chest and lateral side of left thigh. (3) Swelling of right hand with multiple small linear abrasions in dorsum. (4) Pressure abrasion over medial aspect of right elbow the left nipple (4X4 cm), front of right knee (3X4 cm) and right side of the back of chest (4X1 cm). (5) Pressure abrasion four in numbers, 5X1 cm each other. (6) Pressure abrasion, three in numbers (4X1 cm, 3X2 cm, 4X2 cm) over the lateral sides of upper end of right leg. (7) Contusion of whole of the occipital scalp. (8) lacerated injury over the junction of little and ring fingers of left hand (2X1X1 cm) and middle part of occipital scalp (2X1 cm X scalp deep). (9) Lacerated injury over upper part of front of left leg (5X4 cm) with compound and comminuted fracture of upper 1/3 rd of tibia and fibula. (10) Lacerated injury over medial aspect of lower end of left leg (7X2 cm X subcutaneous tissue deep). (11) Crush injury of lower end of right leg just above ankle exposing fractured bones, lacerated muscles and vessels (16X8 cm). (12) Fracture of tibia and fibula, upper end of right leg. (13) Dislocation of left ankle joint with swelling of the surrounding area (14) Pressure abrasion over the back Page No.# 5/16 of chest over lo left part 5X2 cm. (16) Contusion of sole tissues (17) Fracture of 5th and 6th ribs on right side and 8th rib on left side."
In the opinion of the doctor, cause of death was hemorrhage and shock resulting from the injuries sustained, which were antemortem, caused by blunt weapons and homicidal in nature. Approximate time of death was 4 to 8 hours before the postmortem examination.
4. On completion of investigation, police submitted charge sheet against 9 accused persons, all of whom stood trial.
5. In course of trial, prosecution examination 12 witnesses to establish the charge. On appreciation of evidence, learned trial court convicted the appellants Fakar Uddin and Fazal (appellants in Crl. A. 48/2010) and awarded sentence as indicated above. Rests of the accused persons were acquitted by the learned trial court.
6. Out of the 12 witnesses examined by the prosecution, PW-4 Nurun Nahar Begum is the wife of the victim. She deposed that on 17.10.2000, at about 10 O'clock at night, her husband was coming home from Silchar by riding scooter and she was with him as pillion rider. When they reached near the shop of one Nena Mia, at Ram Nagar, the accused persons namely, Amir Uddin, Fajal Uddin, Faju Uddin, Hussain Uddin and Jyoti Ahmed suddenly started assaulting her husband with lathi and rod. She requested them not to assault her husband, but they continued to assault. At that point of time, PW-5, the elder brother of the deceased came there. She further deposed that her son-in-law (PW-8) also came there and tried to save her husband. According to her, the accused Fakar Uddin hit on the leg of the victim with stone. She further deposed that police arrived at the place of occurrence immediately and on being asked by the police, the victim stated, that Amir, Fajal, Fakar, Faiju and Hussain attacked him.
7. PW-5, elder brother of the victim deposed, that he was infront of the shop of Nena Mia and hearing "halla", he went there and found the accused Amir, Fakar, Fajal, Faju, Hussain, Jyoti and Ajim, assaulting the victim. He further deposed, that Fakar and Fajal hit the victim on Page No.# 6/16 his leg with stone. This witness also stated that the victim Aklas stated before police immediately after the occurrence that Amir, Fajal, Faiju and Hussain assaulted him.
8. PW-8 Abdul Malik Hazari was the son-in-law of the victim. According to him, he was in the shop of Nena Mia and hearing the scream of his father-in-law and mother-in-law, he arrived the place of occurrence near the petrol pump, where he found Amir, Hussain, Fakar, Faiju, Fajal, Joyti and Ajim attacking the victim with lathi, iron rod etc. He also stated to have found PW-5 at the place of occurrence. He further stated that, Fakar and Fajal hit the victim on his leg with a big stone. As he protested, the accused persons assaulted him. According to him, the victim stated before police that Amir, Hussain, Fakar, Faiju and Fajal assaulted him. During cross examination, he stated that police arrived at the place of occurrence immediately after 10 to 15 minutes, but he did not tell anything to police.
9. PW-1 was not present at the place of occurrence and he came later upon hearing about the occurrence. PW-2 also did not see the occurrence. According to him, though he heard halla near the hotel, he did not come forward. However, when police visited the place of occurrence, he came there. According to him no one mention the name of the accused persons before him after the occurrence. PW-3 testified, that he came later on, when police arrived there. According to him, immediately within 10/15 minutes of the occurence, police came to the place of occurrence. He also stated, that no one reported to police about the assailants. PW-6 also stated that immediately after the occurrence, he arrived the place of occurrence at about 10-30 PM and found PW-4 & PW-5, who did not tell him the names of the assailants. PW-7 was declared hostile. PW-9 also stated in the same tune, that immediately after the occurrence, he arrived there, but nobody told about the assailants. PW-10, PW-11 & PW-12 were the Investigating Officer and the doctor respectively. Learned trial court basically relying on the oral testimony of PW-4, PW-5, PW-8 & PW-10, convicted the two appellants Fazal and Fakar and acquitted the others.
10. We have heard learned Sr. Counsel, Mr. A.M. Bora for the appellants in Crl. A. 48/2010 as well as for the respondents in Crl. A. No. 85/2010 and Crl. Rev. P. No. 196/2010. We have also heard learned counsel Mr. B. Banerjee and Mr. N.K. Kalita, learned Addl. P.P. for the respondent in Crl. A. No. 48/2010 as well as appellants in Crl. A. 85/2010 & Crl. Rev. P. No. 196/2010.
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11. The contention of the learned Sr. Counsel Mr. Banerjee and also learned Addl. P.P. Mr. N.K. Kalita as regards the acquittal of the co-accused was that the charges were framed under Section 302/325 IPC read with Section 149 IPC against all the accused persons, who were members of the unlawful assembly and committed the offence in prosecution of the common object of the assembly, and as such even if there was no evidence of actual participation of all the members, they were liable constructively under Section 149 IPC, as all of them were the members of unlawful assembly. When charge was framed under Section 149 IPC, the learned trial court committed illegality in acquitting the respondents in Crl. A. 85/2010 and Crl. Rev. P. No. 196/2010, on the ground of absence of evidence regarding their participation, submits Mr. Banerjee. In support of the submission, learned counsel placed reliance on the decision of the Apex Court in Jaswant Singh Vs. State of Haryana reported in (2000) 4 SCC 484, where the Apex Court observed that when offence was committed by any of the members of the unlawful assembly in prosecution of the common object and the elements of Section 149 IPC is proved, it is not necessary to prove the overt act done by each individual.
12. Mr. A.M. Bora, has not assailed the evidence relied upon and the finding arrived at by the learned trial court, that the appellants in Crl. A. No. 48/2010 were the perpetrator of the offence. However, contention of Mr. Bora was that on the basis of the evidence adduced by the prosecution, the appellants could not be convicted for offence of murder under Section 302 IPC, inasmuch as, intention to cause death or premeditation on the part of the appellants for causing death of the victim was totally absent. At best conviction could be under Section 326 or 304 Part-II IPC, submits Mr. Bora. Mr. Bora further contended that findings of acquittal recorded by the trial court in respect of the other co-accused/respondents was quite reasonable and based on extensive scrutiny of the evidence on record and as such there is no scope to interfere and reverse such finding of acquittal recorded by the trial court.
13. We have carefully gone through the evidence and materials brought on record and considered the submissions of the learned counsels. Since the Crl.A. 196/2010 and the revision are against the order of acquittal, we will firstly deal with the appeal and the revision preferred by the prosecution against the acquittal.
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14. Before adverting to the evidence and the submission made by the learned counsel, we feel it apposite to remind ourselves as to the scope of the appellate court in interfering with an order of acquittal by the trial court. The Apex Court in Jaswant Singh Vs. State (supra) dealing with the principle to be followed by appellate court, while considering an appeal against acquittal held in para-21 as under:
"21. The principle to be followed by Appellate Courts considering an appeal against an order of acquittal is to interfere only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference (See : Shivaji Sahabrao Bobade Vs. State of Maharashtra [1973] 2 SCC 793). The principle was elucidated in Ramesh Babulal Doshi Vs. State of Gujarat, [1996] 9 SCC 225 :
"While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions."
15. In Sidhartha Vashist Vs. State (NCT of Delhi) reported in (2010) 6 SCC 1, the Apex Court laid down the principles for dealing with appeal against acquittal in para-13 as under:
"13) The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.
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(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed."
16. The Apex Court in State of Rajasthan Vs. Shera Ram (2012) 1 SCC 602 (AIR 2012 SC 1) observed as under:
"12. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
17. In V. Sejappa Vs. State reported in (2016) 12 SCC 150, the Apex Court held that "In dealing with appeals against acquittal, the appellate court must bear in mind the following:
Page No.# 10/16 "(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
18. What therefore follows from the above authorities is that though, the distinction between the power of the appellate court in dealing with the appeal against conviction and acquittal is thin, the appellate court is obliged to bear in mind that the order of acquittal strengthen the presumption of innocence in favour of the accused, and as such, the appellate court should be circumspect in exercising appellate jurisdiction against an order of acquittal. The view consistently taken by the Apex Court is that unless the judgment of acquittal is perverse or palpably erroneous or the view taken by the trial court is totally unreasonable and inconsistent with the settled cannon of criminal jurisprudence, the appellate court should stay its hands from interfering with the order of acquittal.
19. Keeping in view the above principles, let us now examine the impugned judgment and he evidence on record. Learned trial court observed that involvement of the co-accused persons other than the two, who were convicted, was doubtful and as such acquitted them. The crux of the submission made by Mr. Banerjee, learned counsel for the revision petitioner was, that all the accused persons formed unlawful assembly and there was also charge under Section 149 IPC and as such all the accused persons were constructively liable, irrespective of Page No.# 11/16 their individual participation.
20. In order to robe a person for commission of offence constructively with the aid of Section 149 IPC prosecution has to prove the following essential ingredients.
(i) there has been an unlawful assembly constituted by accused persons,
(ii) the unlawful assembly of 5 or more persons was constituted with any of the common object as enumerated in Section 141 IPC,
(iii) the offence was committed by any one of the members of the unlawful assembly,
(iv) such offence must have been committed in prosecution of the common object of the assembly or
(v) the members of the assembly knew that such offence/offences was/were likely to be committed in prosecution of the common object.
21. When all the above elements are proved beyond reasonable doubt then only, a person can be convicted with the aid of Section 149 IPC on the basis of constructive liability and in such case individual overt act may be immaterial.
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22. The PW-4, who claimed to be an eye witness, lodged the FIR (Ext.2). It was mentioned in Ext.2, that 9 persons including the two appellants in Crl A. No. 48/2010, assaulted the victim, while he was coming from Silchar. During evidence, PW-4, the informant, though, made an omnibus statement that 5 accused persons, namely, Amir, Fakar, Fajal, Hussain and Jyoti assaulted her husband, she stated specifically, that the accused Fakar assaulted her husband on his leg by a stone. She also stated, that her husband named four persons being his assailant, whereas, PW-5 named seven accused persons as assailant. He stated specifically that the convicted accused Fakar and Fajal assaulted the victim with stone on his leg. PW-8 also stated in the same manner, that Fakar and Faijur assaulted the victim on his leg with a stone. PW-5 stated in his previous statement before police, that on arriving at the place of occurrence, he found the victim in unconscious condition. He also stated, that due to darkness, he could not identify some of the accused persons. According to PW- 6 & 9, who arrived the place of occurrence this PW-5 did not disclose the name of any assailants. Therefore, the oral testimony of the PW-5, that he witnessed the victim being assaulted by seven accused persons was hardly convincing. Though, PW-4 stated in her evidence, that victim disclosed the name of 4 assailants, she did not make such statement before police recorded under Section 161 CrPC. Evidently, police arrived within 10 to 15 minutes of the occurrence and all the three vital witnesses were present there, but none of them disclosed the name of the accused persons before police or PW-6 and PW-9 who arrived the place of occurrence, immediately. It is in the evidence of PW-10, that immediately after the occurrence, at about 10.20 PM, an unknown person informed police over phone about the occurrence, on the basis of which, GD Entry No. 371 was made. In the said GD Entry also, name of the assailants were not mentioned. Admittedly , the informant visited the police outpost on the night itself, but no FIR was lodged, at that time and the FIR was lodged on the next day, at 11 AM after death of the victim. It is no doubt true, that delay in lodging FIR per se is not fatal for the prosecution, nor it can be a ground to doubt the prosecution case. However, the court is obliged to take note of the delay in lodging the FIR in the backdrop of each case, reason being that, inordinate delay without any acceptable explanation, may create suspicion about the veracity of the information. It is needless to say, that the explanation for delay in all cases may not be in express words in the FIR. The explanation as to delay can also be discerned from the attending facts and circumstances. Whether delay in lodging FIR creates any dent in the prosecution case, would depend on the facts and circumstances of the case. In the case in hand, evidently the informant visited the police on the night itself after the occurrence, followed by PW-5.
Page No.# 13/16 However, the FIR was lodged on the next day. Evidently none of the PW-4, PW-5 and PW-8 disclosed the name of the assailants on the night of occurrence. Whereas, as many as nine persons were named in the FIR as assailants, however, while deposing in court the informant implicated only five persons. The testimony of PW-4, PW-5 & PW-8 would also show that they mentioned the name of different persons. All these facts and circumstances obviously shrouded the prosecution story in the deep mystery as to the actual assailants.
23. Though, all the PW-4, PW-5 & PW-8 deposed that the victim himself disclosed the names of his assailants, such evidence appears to be hardly convincing for two reasons. Firstly, the PW-5, the eye witness, who arrived the place of occurrence immediately, though, stated, that on reaching the place of occurrence, he found the victim lying on the road and he disclosed the name of the assailants, but in his previous statement before police, he stated that on arriving at the place of occurrence, he found the victim in unconscious state. He also stated, that because of darkness he could not identify some of the assailants. Secondly, the oral testimony of PW-4, PW-5 & PW-8 as regards the victims disclosing the name of assailants was not only inconsistent and contradictory, interse, but also inconsistent with their previous statement.
24. From a dispassionate scrutiny of the oral testimony of vital witnesses being PW-4, PW-5 & PW-8 and also the Investigating Officer, it appears that prosecution witnesses consistently deposed implicating the accused Fakar Uddin and Fazal, that they assaulted the victim with a stone on his leg. Although, all these three witnesses have mentioned the name of some other accused persons, their testimonies as regards involvement of other accused persons were inconsistent and contradictory, inasmuch as, PW-4 though mentioned about nine persons in the FIR, while deposing in court she implicated only five persons. None of these witnesses disclosed the name of the accused person immediately after the occurrence, when police arrived there and the FIR was admittedly lodged on the next day implicating 9 persons. In the FIR lodged by PW-4, it was mentioned that the assailants inflicted injuries with sword and other weapons. However, medical evidence demonstrated that there was no injury caused by any sharp weapon. Therefore, the evidence of the vital prosecution witnesses, all of whom were closely related to the victim, regarding presence and participation of the other accused persons, besides the two convicted appellants in Crl. A. No. 48/2010, or the actual number of assailants appears to be extremely shaky, and as such, the involvement of the other accused Page No.# 14/16 persons except, the convicted appellant, being after thought, cannot be ruled out. Therefore, the basic element for invoking the provision of Section 149 IPC, being the formation of unlawful assembly, does not appear to have been established beyond reasonable doubt, and as such, prosecution evidence was grossly inadequate to prove the formation of an unlawful assembly. Noticing the inconsistency and infirmities in the oral testimony of PW-4, PW-5 & PW- 8 as indicated above, learned trial court declined to rely on the prosecution witnesses as regards involvement of the other accused persons, except the appellants Fakar Uddin and Fazal as well as the formation of unlawful assembly and convicted only the two appellants on the basis of their individual liability and acquitted the others. Having regard to the infirmities in the evidence adduced by prosecution witnesses, more particularly, PW-4, PW-5 & PW-8 i.e. the inconsistency in their statement inter-se and the inconsistency between the previous statement and the statement in court, non-disclosure of the name of the assailants immediately after the occurrence by any of the PW-4, PW-5 & PW-8, though police arrived the place of occurrence immediately within 10 to 15 minutes, making contradictory statement as regards victim's statement disclosing the name of assailants and contradiction between the statement made in the FIR and the evidence in court regarding the assailants, the views taken by the learned trial court, regarding credibility of the prosecution story regarding involvement of the other accused persons, except the convicted duo, in our considered opinion, cannot be held to be perverse or unreasonable. Therefore, we do not find any demonstrable perversity or unreasonableness in the findings of the learned trial court to interfere with the impugned judgment, so far as the acquittal of the respondents in Crl. Appeal No. 85/2010 and Crl. Rev. P. NO. 196/2010 are concerned.
25. The evidence of PW-10, the doctor and the postmortem report shows that all the injuries sustained by the victim were caused by blunt weapon. It was also stated by the doctor in cross examination that the parts of the body, where the victim sustained injuries being forearms, right hand, right elbow, cheek, right leg, finger, tibia fiebula, left leg etc. were not vital parts of the body and the injuries sustained independently could not cause death, but death could be caused as a cumulative effect of all the injuries. It was also stated by the doctor during cross examination that some of the injuries could be caused by fall.
26. It is in the evidence, that the accused persons picked up the stone from the road side and assaulted the victim with the said stone. Though, it was stated in the FIR that the accused Page No.# 15/16 persons were armed with sword and lathi, the medical evidence makes it clear that no injury caused by sharp weapon like sword was detected. When admittedly the crash injury on the leg was caused by stone and the said stone was picked up by the accused persons from the road side, it is difficult to say that the accused had intention to cause death of the victim. Had they harboured any intention to cause to death of the victim, certainly they would have come, armed with weapons. The picking up stones for hitting the victim and the injuries sustained by him also suggested that initially the accused might not be armed with any weapon. It is also in the medical evidence that the injuries sustained by the victim independently were not of so serious, as is likely to cause death. Though, according to doctor cumulative effect of all the injuries were sufficient to cause death, the nature of injuries inflicted to the victim, the weapon used and the parts of the body where injuries were inflicted and the facts that the vital injuries were caused by stone, which was picked up only from the place of occurrence speaks loud and clear, that the perpetrator of the offence did not have the intention to cause death of the victim, though, they might have the intention to cause hurt or injury to the victim.
27. In view of the above evidence, we are inclined to concur with the submissions of the learned counsel Mr. Bora, that conviction under Section 302 IPC is not sustainable, as the intention to cause death was totally absent in the instant case. Even though, each individual injury might not be of that serious in nature, as is likely to cause death, having regard to the multiple injuries caused to the victim, it is difficult to rule out the intention of the perpetrator of the offence to cause such injury as is likely to cause death. Therefore, in our considered view, the appellant in Crl. Appeal No. 48/2010 and Crl. Appeal No. 85/2010 would be liable for the offence of culpable homicide not amounting to murder. Accordingly, we set aside the conviction and sentence of the appellants in Crl. Appeal No. 48/2010 under Section 302 IPC, instead, we convict them under Section 304 Part-I IPC and sentence them to rigorous imprisonment for 10 (ten) years and fine of Rs. 5000/- each. In default of payment of fine, the appellants shall undergo further simple imprisonment for 6 (six) months. We do not find any reason to interfere with the conviction and sentence under Section 325 IPC, which were directed to run concurrently with the other substantive sentences.
28. With the above modification in conviction and sentence of the appellants, Criminal Appeal No. 48/2010 stands partly allowed. However, the Criminal Appeal No. 85/2010 and Criminal Revision Petition No. 196/2010 are dismissed.
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29. Send down the LCR along with a copy of this judgment & order.
JUDGE JUDGE Mkk Comparing Assistant