@JUDGMENTTAG-ORDER
Mr. Ujjal Bhuyan, J.—This bunch of criminal appeals have been filed against the judgment and order dated 18.12.2013 passed by the learned Additional Sessions Judge, Sonitpur at Tezpur in Sessions Case No. 04/2005 convicting the appellants under Sections 147/148/323/448/302 IPC read with Section 149 IPC and sentencing them to undergo rigorous imprisonment (RI) for life with fine of Rs. 10,000 each for conviction under Section 302 IPC read with Section 149 IPC; RI for 3 years for conviction under Section 448 IPC read with Section 149 IPC; RI for 6 months for the offence under Section 323 IPC read with Section 149 IPC; RI for 3 months for the offence under Section 147 IPC read with Section 149 IPC and RI for 6 months with fine of Rs. 500/- and in default, further RI for 1 month for the offence under Section 148 IPC read with Section 149 IPC.
2. We have heard Mr. A.K. Bhattacharjee, learned Senior counsel for the appellants in Criminal Appeal No. 54/2014, Mr. Kamal Agarwal, learned Senior counsel for the appellants in Criminal Appeal Nos.47 and 48/2014, Mr. H.R.A Choudhury, learned Senior counsel for the appellants in Criminal Appeal No. 17/2014, Mr. A.M. Bujarbaruah, learned Senior counsel for the appellant in Criminal Appeal No. 57/2014, Mr. B.M. Choudhury, learned counsel for the appellant in Criminal Appeal No. 67/2014, Mr. A.M. Bora, learned counsel for the appellant in Criminal Appeal No. 50/2014 and Mr. A. Ganguly, learned counsel for the appellants in Criminal Appeal No. 71/2014. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the respondent, State of Assam.
3. Prosecution case in brief is that on 05.03.2003 at about 8.45 pm, PW1 Md. Afruj Hussain arrived at the Tezpur Police Station compound in a TATA Sumo vehicle bringing with him his brother Md. Ejaj Hussain @ Bittu in a blood smeared condition. PW1 verbally informed the police that on that day, i.e., on 05.03.2003 at about 8.10 pm, while he was in Himalayan Holidays'' counter, some miscreants armed with sharp weapons grievously injured his brother Md. Ejaj Hussain by stabbing and hacking him on his head and abdomen. Finding the condition of the injured to be very serious, injured was sent to Kanaklata Civil Hospital by the said TATA Sumo itself. Emergency Officer of the Police Station SI Nagen Saikia was directed to make necessary medical requisition for treatment of the injured and also to take necessary steps as per law. The above information was duly received where after General Diary Entry was made to that effect, being GD Entry (GDE) No. 247 (Exhibit-15).
4. When the injured reached the hospital, attending doctors declared him dead.
5. Inquest on the dead body of Ejaj Hussain was carried out at the Civil Hospital itself where after inquest report was prepared (Ext.1).
6. At around 11.45 pm of 05.03.2003, written Ejahar was lodged by PW1. In this Ejahar, informant stated that on 05.03.2003 at about 8 o'' clock, while his brother (Ejaj) was sitting at the TATA Sumo counter of Himalayan Holidays situated at Kabarkhana Road, the accused persons named therein well-equipped with dao, stick, sharp pointed weapon, rod, etc, came in a group, took away his brother from the counter and caused grievous injuries on his head and abdomen by attacking him with dao and sharp pointed weapon. As a result of such attack, his brother Ejaj died on the spot. Seeing his brother dying, PW1 along with his elder brother Jamal (PW2) went to save him but they too were assaulted by the accused persons with dao and stick. The following persons were named as accused in the written Ejahar:-
1. Md. Abdul Latif,
2. Md. Suleman,
3. Md. Abdul Rahman,
4. Md. Abdul Kasem,
5. Ajmail Gaji,
6. Ramjan Ali,
7. Ilias Ali,
8. Md. Wasim Miraj Choudhury @ Chitto,
9. Md. Mafijul,
10.Sazid Hussain,
11.Md. Halim,
12.Osman Goni,
13.Naim Gaji,
14.Munna Choudhury,
15.Asad Ahmed Gaji and many others.
7. On the basis of the same, Tezpur Police Station Case No. 160/2003 under Sections 147/148/149/448/302/325/326 IPC was registered.
8. The said written Ejahar which was treated as First Information Report (FIR), had the endorsement of Chief Judicial Magistrate, Sonitpur, Tezpur on 07.03.2003. Be it stated that police had recorded statements of three witnesses, namely, Md. Afruj (PW1), Md. Jamal Hussain (PW2) and Arif Ali (PW6) at the hospital premises itself. Police also seized the blood stained clothes of deceased Ejaj Hussain vide Ext.9, Seizure List.
9. In the course of investigation, police visited the place of occurrence, drew sketch-map of the site and seized the following vide Ext.4:-
1. One green bamboo stick with one end crushed,
2. One blood stained iron sword fitted with wooden handle,
3. One blood stained iron rod,
4. One blood stained dao without handle,
5. One wooden framed tin sign board with ''Arunachal Tour and Travels'' written on it.
10. The Investigating Officer also seized one green coloured LML NV Scooter and one white coloured TATA Mobile vehicle from the place of occurrence.
11. Post-mortem examination was carried out on 06.03.2003 (Ext.8). Blood stained weapons were sent for serological examination. Witnesses were examined. Statement of PW1 was recorded under Section 164 of the Code of Criminal Procedure, 1973 (Cr.PC) on 11.03.2003 whereas that of PW2 was recorded on 20.03.2003. Statement of Tarzan Ali (PW3) was also recorded under Section 164 Cr.PC on 20.03.2003. Besides post-mortem report, injury report was also prepared.
12. On completion of investigation, police submitted charge-sheet on 24.12.2003 against the following persons:-
1. Md. Abdul Latif,
2. Md. Naim Gaji,
3. Md. Ajmail Gaji,
4. Md. Asad Ahmed Gaji,
5. Md. Khairul Hussain,
6. Md. Munna Choudhury,
7. Md. Baharul Islam,
8. Md. Ramij Raja,
9. Md. Nasim Khan,
10. Md. Amir Hussain,
11. Md. Khairul Islam,
12. Md. Suleman,
13. Md. Abdul Rahman,
14. Md. Mofijur Rahman,
15. Md. Abdul Kassem,
16. Md. Wasim Miraz Hussain @ Chitto,
17. Md. Sajid Hussain,
18. Md. Ilias Ali,
19. Md. Ramjan Ali,
20. Md. Hekim Hussain.
13. The offence being exclusively triable by Court of Sessions, case was committed for trial to the Court of Sessions vide order dated 10.12.2004.
14. One of the charge-sheeted accused Md. Baharul Islam died before framing of charge. Two of the accused were not sent up to face trial as they were absconding. They were Osman Goni and Md. Halim. The case was transferred to the Court of Additional District and Sessions Judge, FTC, Sonitpur for disposal.
15. Charges under Sections 147/148/323/324/302 read with Section 149 IPC were framed against the accused persons. The accused persons pleaded not guilty to the charges framed and claimed to be tried. It appears that the two absconding accused persons were subsequently arrested and tried.
16. To prove the charges framed against the accused persons, prosecution examined as many as 17 witnesses. Thereafter, statements of the accused persons were recorded under Section 313 Cr.PC. Plea of the accused persons was that of total denial. Additionally, accused Asad Ahmed Gaji, Md. Abdul Latif and Abdul Hekim took the plea of alibi and adduced in all 8 witnesses including Md. Abdul Latif himself in support of the plea of alibi.
17. Accused Md. Abdul Halim expired before pronouncement of judgment.
18. On conclusion of trial, learned trial Court found the accused appellants guilty of the offences under all the Sections except Section 324 IPC. After hearing the convicted accused on the point of sentence, they were sentenced accordingly.
19. All the 15 convicted persons have filed the Criminal Appeals forming part of this bunch.
20. Mr. A.K. Bhattacharjee, learned Senior counsel appearing for the appellants in Criminal Appeal No. 54/2014 has referred to GD Entry dated 05.03.2003 and read out both original Assamese version and the translated English version and compared it with the written Ejahar lodged on the same date but after about three hours and submits that there is grave discrepancy in the version of the informant, PW1. While the accused persons are neighbours of PW1 whom he named in the subsequent statements, yet he failed to mention about them in the GD Entry which in the facts and circumstances of the case has to be treated as the FIR. He also did not name any accused person when his statement was recorded by the police prior to lodging of written Ejahar. While as per the GD Entry, deceased Ejaj Hussain was assaulted by some miscreants with sharp weapons while he was in the Himalayan Holidays counter, as per written Ejahar, deceased was taken away by the accused persons named therein while he was sitting in the TATA Sumo counter of Himalayan Holidays where after he was attacked on his head and abdomen by dao and sharp weapon resulting in his death. Learned Senior counsel has produced the sketch-map of the place of occurrence and comparing the same with the multiple versions of PW1 in the GD Entry, statement made before the police and written Ejahar, contends that what transpires therefrom is a conflicting and confusing narrative disclosing several places of occurrence. Moreover, the written Ejahar had the endorsement of Chief Judicial Magistrate on 07.03.2003 whereas it was lodged on 05.03.2003. This delay has not been explained. Statement of PW1, an eye witness, was recorded under Section 164 Cr.PC very belatedly on 11.03.2003. All these discrepancies cast serious doubt about the veracity of the prosecution case.
20.1. Referring to Section 162 Cr.PC including the explanation thereof, learned Senior counsel submits that written Ejahar lodged subsequently cannot be treated as FIR. He submits that occurrence took place in a crowded locality during peak evening time. Prosecution could not produce a single independent witness to support its case. Referring to the evidence of PWs 1, 2 and 3, learned Senior counsel submits that though these three witnesses claimed to be the eye-witnesses, their version cannot be accepted as those suffer from material inconsistencies striking at the root of the prosecution case. The fact that they were related to the deceased cannot be overlooked. He has also referred to the provision of Section 149 IPC in support of his contention that the said provision has been indiscriminately used to rope in the accused persons who were unrelated to the incident. While summing up his submissions, learned Senior counsel laid great stress that in a criminal trial, prosecution case ''must be true'' . It is not enough if the prosecution case ''may be true''. The distance between ''may be true'' and ''must be true'' should be covered by the prosecution by placing legal, reliable and unimpeachable evidence which is lacking in the present case. Therefore not only his clients but all the appellants should be granted the benefit of doubt. In support of his submissions, learned Senior counsel has placed reliance on the following decisions:-
AIR 1957 SC 637 = Harbansh Singh Bhan Singh v. State of Punjab,
(1976) 1 SCC 750 = Nachhattar Singh v. State of Punjab,
AIR 1955 SC 196 = H.N. Rishbud v. State of Delhi,
AIR 1959 SC 707 = State of MP v. Mubarak Ali,
(1971) 3 SCC 471 = Devi Lal v. State of Rajasthan,
AIR 1953 SC 415 = Mohinder Singh v. State,
(1974) 3 SCC 379 = Harchand Singh v. State of Haryana,
(1974) 4 SCC 186 = Raghunandan v. State of UP,
(1976) 4 SCC 394 = Lakshmi Singh v. State of Bihar,
AIR 1957 SC 614 = Vadivelu Thevar v. State of Madras,
(1974) 4 SCC 300 = Hallu v. State of Madhya Pradesh,
(1974) 4 SCC 494 = State of Haryana v. Gurdial Singh,
(1978) 4 SCC 385 = Muthu Naiche v. State of Tamilnadu,
(2011) 9 SCC 257 = Ramachandran v. State of Kerala,
(2009) 16 SCC 337 = K.M. Ravi v. State of Karnataka,
(2011) 5 SCC 324 = Kuldip Yadav v. State of Bihar
21. Mr. Kamal Agarwal, learned Senior counsel appearing for the appellants in Criminal Appeal Nos.47 and 48/2014, has made detailed submissions. He submits that the earliest version of the prosecution case is manifested through GD Entry No. 247 recorded at 8.45 pm on 05.03.2003 (Ext.15). On the basis of GD Entry, police started investigation. Requisition was sent for medical examination of the victim, inquest and seizures were made and statements of four witnesses were recorded, i.e., PW1, PW2, PW6 and PW7. None was mentioned as having assaulted the deceased though in the written Ejahar lodged by PW1 after almost 3 hours of the GD Entry at 11.45 pm, 15 persons were named as accused. As per version in the GD Entry as well as in the written Ejahar, deceased was assaulted in the Himalayan Holidays counter itself and not elsewhere. This is in total contradiction to the evidence of PWs 1, 2 and 3 who claimed to be eye-witnesses to the occurrence. As per their version, the incident took place on the other side of the road and when they went to save the deceased, they also got injured. Such vital contradiction raises serious doubts about the credibility of the said witnesses. Regarding written Ejahar, it is submitted that the same is hit by Section 162 Cr.PC. The GD Entry being recorded at earlier point of time and having regard to the mandate of Section 154 Cr.PC, the same would be treated as the FIR and not the written Ejahar lodged subsequently. GD Entry was conspicuously silent about the accused persons whereas in the written Ejahar lodged belatedly, 15 persons were named as assailants. Belated filing of Ejahar raises suspicion about manipulation to implicate the accused persons. Therefore, no reliance can be placed on the written Ejahar (Ext.2). The medical evidence, both in respect of the deceased as well as in respect of the other injured persons, does not support the viciousness of the assault projected by the prosecution.
21.1. In support of his submissions, Mr. Agarwal has placed reliance on the following decisions:-
AIR 1973 SC 501 = Thulia Kali v. State of Tamilnadu,
(2012) 2 SCC 34 = Kailash Gour v. State of Assam,
(2014) 2 SCC 1 = Lalita Kumari v. Govt. of Uttar Pradesh,
(2003) 6 SCC 175 = CBI v. Tapan Kumar Singh,
(2001) 6 SCC 181 = T.T. Antony v. State of Kerala,
AIR 1975 SC 1026 = Ram Kumar Pande v. State of MP,
(2013) 12 SCC 406 = Sujit Biswas v. State of Assam,
AIR 1976 SC 2263 = Lakshmi Singh v. State of Bihar,
AIR 1980 SC 1873 = Purushottam v. State of MP,
(2010) 10 SCC 259 = Abdul Sayeed v. State of MP,
(2013) 4 SCC 422 = Sunil Kundu v. State of Jharkhand,
(2013) 15 SCC 298 = Gangabhavani v. Rayapati Venkat Reddy
AIR 1956 SC 181 = Baladin v. State of UP,
(2009) 10 SCC 773 = Pandurang Chandrakant Mhatre v. State of Maharashtra,
(2010) 5 SCC 81 = Daya Kishen v. State of Haryana,
(2011) 5 SCC 324 = Kuldip Yadav v. State of Bihar,
(2013) 16 SCC 752 = Ranjit Singh v. State of Punjab,
AIR 1977 SC 170 = Rabindra Kumar Dey v. State of Orissa,
AIR 1973 SC 2773 = Kali Ram v. State of H.P.,
AIR 1953 SC 415 = Mohinder Singh v. State,
AIR 1975 SC 1727 = Ram Narain v. State of Punjab,
AIR 1981 SC 1597 = Milkiyat Singh v. State of Rajasthan,
AIR 1957 SC 637 = Sawan Singh Ratan Singh v. State of Punjab,
AIR 1957 SC 614 = Vadivelu Thevar v. State of Madras,
AIR 1984 SC 1622 = Sarad Birdichand Sarda v. State of Maharashtra,
AIR 1975 SC 1962 = Balaka Singh v. State of Punjab,
1980 (Supp) SCC 417 = Juwar Singh v. State of MP,
AIR 1970 Assam 137 = Nirmalendu Biswas v. State,
1978 Crl.J. 1827 = Bhola Bhagat v. State of Bihar
22. Mr. HRA Choudhury, learned Senior counsel for the three appellants in Criminal Appeal No. 17/2014 submits that appellant No. 1 Md. Asad Ahmed Gaji is a 62 years old Imam of a Mosque and teacher of Bhojkhowa Senior Madrassa. He is the father of other two appellants Md. Ajmail Gaji and Md. Naim Gaji. He submits that neither in the GD Entry which is, in fact, the first information nor in the statement of PW1 recorded under Section 161 Cr.PC prior to lodging of written Ejahar on 05.03.2003, did he name anybody as having fatally assaulted his brother, the deceased. Subsequently, he lodged written Ejahar at about 11.45 pm on 05.03.2003 wherein, for the first time, he named 15 persons as accused who had assaulted his brother. Though written Ejahar was registered as FIR at 11.45 pm on 05.03.2003, it was sent to the Magistrate on 07.03.2003 which was in violation of Section 157 Cr.PC. On 06.03.2003, Investigating Officer called PW3 to the house of the deceased where his statement under Section 161 Cr.PC was recorded. Statement of PW1 under Section 161 Cr.PC was again recorded on 11.03.2003 at about 11 am where after his statement was recorded under Section 164 Cr.PC on the same day.
22.1. Elaborating his arguments, Mr. Choudhury submits that GD Entry No. 247 dated 05.03.2003 was registered on the basis of information given by PW1 at about 8.45 pm where he did not name anyone as having assaulted his brother; rather, he stated that some miscreants had assaulted his brother. Subsequently, in the written Ejahar, he named 15 persons including Md. Asad Ahmed Gaji and Md. Ajmail Gaji without attributing any direct involvement. PW1 in the written Ejahar stated that deceased died on the spot whereas PW14, i.e., Officer-in-Charge of Tezpur Police Station found him alive at 8.45 pm. The victim reached hospital at about 9.30 pm where the doctor after examination declared him dead. He submits that on the basis of the GD Entry, investigation had already started. Therefore, subsequent Ejahar which has been treated as FIR where, for the first time, names were taken is hit by Section 162 Cr.PC and cannot be relied upon. That apart, even the said FIR was not forwarded to the concerned Magistrate within 24 hours as per provisions of Section 157 Cr.PC. Regarding appellant No. 1, Mr. Choudhury submits that he was an Imam and was leading Namaj at 8 pm in the Masjid which is situated at a distance of about 7 to 8 kilometers from the place of occurrence. This plea of alibi was adequately supported by DWs 5 to 8 in their evidence. All the above facts taken together cast grave doubts about the veracity of the prosecution case. This is further fortified by the fact that a huge gathering had collected at the place of occurrence which is a busy area. The Investigating Officer had admitted that he had recorded statements of 7 independent witnesses but did not name them as witness in the charge-sheet which creates further doubt about the truthfulness of the prosecution case. None of the witnesses in their statements recorded under Section 161 Cr.PC as well as under Section 164 Cr.PC had stated that appellant No. 1 Md. Asad Ahmed Gaji had shouted "Mar dalo, kat dalo" but for the first time PWs 1 and 3 mentioned about the same in their evidence before the Court. He also submits that appellant No. 1 speaks Assamese and therefore it was highly improbable that he would shout "Mar dao, kat dalo" in Hindi. Referring to appellant No. 3, i.e., Md. Naim Gaji, he submits that his presence is not proved as his name did not appear in the written Ejahar. For the first time PW1 stated in his evidence before the trial Court about the assault on him by Md. Naim Gaji with sword which is however not corroborated by the medical evidence. In support of his submissions, Mr. Choudhury has placed reliance on the following decisions:-
(2002) 8 SCC 165 = Jayantibhai Bhenkarbhai v. State of Gujarat,
(2008) 2 SCC 151 = Kunju @ Balachandran v. State of Tamilnadu,
(2008) 16 SCC 99 = Kapildeo Mandal v. State of Bihar,
(2011) 5 SCC 324 = Kuldip Yadav v. State of Bihar,
(2014) 4 SCC 747 = Ashok @ Achak Debbarma v. State of Triupra,
(2014) 12 SCC 312 = Sudarshan v. State of Maharashtra,
23. Mr. A.M. Bujarbaruah, learned Senior counsel appearing for the appellant Md. Hekim Hussain in Criminal Appeal No. 57/2014 submitted that roping in of his client in the commission of the offence with the aid of Section 149 IPC was totally unjustified. His client was in no way involved with the commission of the offence. No overt act was attributed to him. In fact, he had gone away from the crime scene which is acknowledged by PW1 in his evidence when he stated that he saw Md. Hekim Hussain going away with a lathi. Mr. Bujarbaruah, learned Senior counsel, has made elaborate submissions on the scope and ambit of Section 149 IPC and submits that in the facts and circumstances of the case, provisions of Section 149 IPC is not applicable in so far appellant is concerned. Conviction of the appellant with the aid of Section 149 IPC is not justified. In support of his submissions, learned Senior counsel has placed reliance on the following decisions:-
AIR 1960 SC 490 = State of Delhi v. Shri Ram Lohia
(1975) 3 SCC 219 = Balak Ram v. State of UP
(1975) 3 SCC 727 = Santosh v. State of M.P.
(1976) 4 SCC 355 = Ishwar Singh v. State of UP,
(1981) 2 SCC 755 = Bhudeo Mandal v. State of Bihar,
1993 (Supp) 2 SCC 534 = Thakore Dolji Vanvirji v. State of Gujarat,
(2001) 9 SCC 632 = Kalyan v. State of UP,
(2003) 10 SCC 414 = State of MP v. Mansingh,
(2014) 2 SCC 1 = Lalita Kumari v. Govt. of Uttar Pradesh,
(2013) 6 SCC 428 = Yanob Sheikh v. State of West Bengal,
(2010) 3 SCC 648 = Boddella Babul Reddy v. P.P., High Court of Andhra Pradesh
24. Mr. B.M. Choudhury, learned counsel for the appellant Md. Munna Choudhury in Criminal Appeal No. 67/2014 submits that except PW1, no other witness had stated anything about his client. Even in the deposition of PW1, he had only named the appellant without attributing any overt act to him. Learned counsel submits that the trial Court had completely misread the evidence on record and without any basis, had convicted the appellant. He was not present at the place of occurrence when the alleged incident took place and except the stray comment of PW1, there is no material against him. Therefore, learned counsel submits that conviction of the appellant cannot be sustained and the appellant is liable to be acquitted. In support of his submissions, learned counsel has placed reliance on the following decisions:-
(1981) 2 SCC 755 = Bhudeo Mandal v. State of Bihar
AIR 2011 SC 1736 = Kuldip Yadav v. State of Bihar
25. Mr. A.M. Bora, learned counsel appearing for the appellant Md. Suleman in Criminal Appeal No. 50/2014 also made elaborate submissions on the scope and ambit of Section 149 IPC and submits that on a careful analysis of the evidence on record, conviction of the appellant cannot be sustained. He also referred to Section 162 Cr.PC including the explanation thereto to contend that no reliance can be placed on the written Ejahar which was lodged subsequently after recording of GD Entry on the basis of which investigation had already commenced. In support of his submission, Mr. Bora has placed reliance on Mukund Lal v. Union of India (AIR 1989 SC 144).
26. Mr. Ganguly, learned counsel for the appellants Md. Osman Goni and Abdul Rahman besides adopting the submissions of Mr. A.K. Bhattacharjee, learned Senior counsel for the appellants in Criminal No. 54/2014 submitted that the three witnesses who claimed to be eye witnesses, i.e., PWs 1, 2 and 3 are all interested witnesses being relatives and in their endeavour to establish the crime, they presented a highly exaggerated version of the occurrence and submits that injuries described by them as suffered by the deceased as well as by themselves were not supported by the medical evidence. He, therefore, submits that prosecution had failed to prove the case against the appellants in the manner projected beyond all reasonable doubt and, therefore, they are entitled to the benefit of doubt.
27. Ms. S. Jahan, learned Additional Public Prosecutor, Assam who was assisted by Mr. D. Talukdar, learned counsel for the informant, in her brief but pointed submissions presented an overall picture of the crime scene, location of the police station and the hospital. She submits that PW1 after rescuing Ejaj, immediately took his brother, the victim, in a TATA Sumo vehicle and since the police station was on the way to the hospital, they stopped outside the compound of the police station for a while and narrated about the incident to the police on the basis of which GD Entry was made. In such a scenario, it is quite possible and natural that PW1 was not in a state of mind to go on narrating about the whole incident naming the assailants one after another while his brother was dying besides him. The whole endeavour at that point of time was to inform the police and to rush the injured to the hospital. She submits that a GD Entry without details cannot be treated as FIR. In this connection, she has referred to Section 154 Cr.PC as well as the decision of the Apex Court in the case of Yanob Sheikh v. State of West Bengal, reported in (2013) 6 SCC 428. Further submission of learned Additional Public Prosecutor is that delay in forwarding the FIR to the Court is not fatal. In this connection, she has placed reliance on the decision of the Apex Court in Aqeel Ahmed v. State of UP, (2008) 16 SCC 372. She has also made elaborate submissions about Section 149 IPC and in support of her submissions, has placed reliance on the following decisions:-
(1989) 1 SCC 437 = Lalji v. State of UP,
(2012) 3 SCC 221 = Roy Fernandez v. State of Goa,
(2013) 12 SCC 76 = State of Rajasthan v. Shiv Charan
27.1. On the contention that alleged eye witnesses were relatives of the deceased, she submits that because they were relatives of the deceased, their evidence, which are otherwise cogent and reliable, cannot be ignored. In this connection, she placed reliance on the decision of the Apex Court in Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298. She has also placed reliance on the following decisions:-
(2003) 12 SCC 616 = Bikau Pandey v. State of Bihar,
(2012) 3 SCC 221 = Roy Fernandez v. State of Goa,
(2013) 4 SCC 604 = Subal Ghorai v. State of West Bengal,
(2013) 12 SCC 76 = State of Rajasthan v. Shiv Saran,
(2016) 4 SCC 371 = Susanta Das v. State of Orissa
28. Submissions made by learned counsel for the parties have received the due consideration of the Court. We have also perused and examined the decisions cited at the Bar.
29. Before proceeding further, it would be apposite to briefly dilate on the scope and ambit of Section 302 IPC and Section 149 IPC, the two core Sections involved in this bunch of appeals.
30. As per Section 302 IPC, whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. Section 300 IPC defines ''murder'' by stating that except in the cases coming under the purview of the exceptions mentioned therein, culpable homicide is ''murder'', if the act by which death is caused is done with the intention of causing death or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused or if it is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring risk of causing death or such injury as aforesaid. To understand the definition of ''murder'', one has to refer to the definition of ''culpable homicide'' in Section 299 IPC which says that whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of ''culpable homicide''.
31. Thus, it is evident that Sections 299, 300 and 302 IPC are intricately connected which has been the subject of numerous decisions of the Apex Court as well as of this Court. The key expressions appearing in the above Sections, such as, ''murder'', ''culpable homicide'', ''culpable homicide not amounting to murder'', ''intention'' and ''knowledge'' have all received considerable judicial attention leading to settled legal propositions virtually leaving no scope for further deliberation and dilation.
32. Section 149 IPC relates to ''unlawful assembly''. It says that if an offence is committed by any member of an ''unlawful assembly'' in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of commission of that offence, is a member of that assembly is guilty of that offence. ''Unlawful assembly'' is defined in Section 141 IPC being an assembly of five or more persons if the common object of the persons composing that assembly is to commit any criminal act in the manner provided in that situation. As per the explanation, an assembly which was not unlawful when it had assembled, may subsequently become an ''unlawful assembly''.
33. Thus, Section 149 IPC provides that if an offence is committed by any member of an ''unlawful assembly'' in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing that offence was a member of the said assembly would be guilty of that offence. An assembly of five or more persons is designated as an ''unlawful assembly'' under Section 141 IPC if the common object of the persons composing that assembly is to do any act or acts stated in Clauses first to fifth of that Section. As per explanation to Section 141 IPC, an assembly which was not unlawful at the beginning may subsequently become an ''unlawful assembly''. The two essentials of Section 141 IPC are commission of an offence by any member of an ''unlawful assembly'' and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. A word of caution may be sounded that not every person in the assembly would necessarily be guilty but only those who share the common object which must be one out of the five Clauses of Section 141 IPC. Common object of the ''unlawful assembly'' can be deduced from the nature of the assembly, arms used and the behaviour of the assembly before or during the occurrence.
34. Section 149 IPC creates a constructive or vicarious liability of the members of the ''unlawful assembly'' for the unlawful act(s) committed pursuant to the common object by any member of that assembly.
35. In Lalji (supra), the Supreme Court held as under:
"8. Section 149 provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in Section 141 I.P.C., an assembly of five or more persons is designated an ''Unlawful Assembly'', if the common object of the persons composing that assembly is to do any act or acts stated in clauses ''First'', ''Second'', ''Third'', ''Fourth'', and ''Fifth'' of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person fails within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
10. Thus, once the Court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it."
36. In Shiv Charan (supra), the Supreme Court answered the question of applicability of Section 149 IPC as under:
"19. The pivotal question of applicability of Section 149 IPC has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (I) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on the spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under the second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed. For instance, if a body of persons go armed to take forcible possession of land, it may be presumed that someone is likely to be killed, and all the members of the unlawful assembly must be aware of that likelihood and, thus, each of them can be held guilty of the offence punishable under Section 149 IPC. The Court must keep in mind the distinction between the two parts of Section 149 IPC and once it is established that the unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability. However, it may be relevant to determine whether the assembly consists of some persons which were merely passive witnesses and had joined the assembly as matter of ideal curiosity without intending to entertain the common object of the assembly. However, it is only the rule of caution and not the rule of law. Thus, a mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended or knew the likelihood of commission of such an offending act, being a member of unlawful assembly as provided for under Section 142 IPC. It may also not be a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object�����������."
37. Finally, in Susanta Das (supra), the Supreme Court summed up the law relating to Section 149 IPC as under:
"19. When we read Section 149 IPC, since at the very outset it refers to participation of each member of an unlawful assembly, it has to be necessarily shown that there was an assembly of five or more persons, which is designated as unlawful assembly under Section 149 IPC. When once, such a participation of five or more persons is shown, who indulge in an offence as a member of such an unlawful assembly, for the purpose of invoking Section 149 IPC, it is not necessary that there must be specific overt act played by each of the member of such an unlawful assembly in the commission of an offence. What is required to be shown is the participation as a member in pursuance of a common object of the assembly or being a member of that assembly, such person knew as to what is likely to be committed in prosecution of any such common object. In the event of the proof of showing of either of the above conduct of a member of an unlawful assembly, the offence, as stipulated in Section 149 IPC, will stand proved.�������"
38. Having noticed the legal position as above, the evidence on record may now be analysed.
39. The prosecution case hinges on the evidence of PWs 1, 2 and 3 who were presented as eye witnesses to the occurrence. While PWs 1 and 2 are the brothers of the deceased Ejaj Hussain, PW3 is the maternal uncle of the deceased. In his examination-in-chief, PW1 stated that around 8 pm on the day of the occurrence, he was working in his vehicle counter, namely, Seven Sisters Safari with his elder brother Jamal Hussain (PW2) and maternal uncle Tarzan Ali (PW3). All of a sudden, he heard a commotion on the other side of the road. He heard Maulabi Asad Gaji (accused) shouting ''Mar dalo, kat dalo''. Looking out from the counter, he saw someone being assaulted with sword, stick, dao, spear etc. Coming out of his counter, he shouted not to assault as the man would die. Then he could see from an angle that the man who was being assaulted was his brother Ejaj. As he moved forward to save his brother, accused Naim Gaji attempted to strike him with a sword like weapon. When he stretched out his right hand, he was hit on his right thumb and right arm. He was also hit on his back and in the arm by a bamboo. As he moved forward to save his brother, he was again hit on the head and above right eye and his vision became blurred. But notwithstanding that he saw a stick like article in the hands of accused Chitto. He also saw accused Hekim running away with a bamboo. PW1 somehow managed to reach his brother and caught hold of him. He found that intestine had come out of Ejaj''s body and that blood was smeared all over his body. His clothes also got soaked with blood. PW1 somehow managed to bring out his brother and boarded his injured brother on to a TATA Sumo vehicle and together with his elder brother (PW2) and maternal uncle (PW3), took him to the Tezpur Police Station but the police asked them to go to the hospital first. His brother was taken to the Civil Hospital where the doctor after examination declared him dead. Thereafter, he named the accused persons (16 in all) as having together killed his brother. According to PW1, his brother Ejaj had sustained injuries on his head, hands, back and left hand. He also sustained a penetrating wound in his back and his intestine had come out. His brother PW2 and employee of PW2 Parimal had sustained injuries on their head. Parimal subsequently died.
40. Thus, from his evidence-in-chief, it is seen that though PW1 mentioned the names of 16 accused as having together killed his brother Ejaj, he did not elaborate how and in what manner, the 16 accused persons had formed the ''unlawful assembly'' except four accused persons, namely, Asad Ahmed Gaji, Naim Gaji, Chitto and Hekim against whom specific overt acts were attributed.
41. In his cross-examination, PW1 stated that when he heard the commotion, he looked at the direction of the commotion and saw a crowd in front of his shop. He saw 20/25 people all armed with dao, lathi, sword, etc assaulting someone. They were all standing up and committing the assault. When he moved towards the crowd, he could know that it was his brother Ejaj @ Bitto who was being assaulted. Immediately, he went ahead to save him. At that moment, members of that group rushed towards him and also assaulted him as a result of which he sustained injuries on his fingers, left arm, right thumb and above the left eyebrow. He stated that he knew very well as to who had assaulted his brother but he stated that it was his immediate duty to provide treatment to his brother. He put his brother in a TATA Sumo vehicle and went to the police station. At that time, his brain was not functioning. He informed the police that his brother was assaulted with spear, gong, etc. But without mentioning the names of all the accused persons, he stated that assault was committed by Latif and others. He further stated that Latif and Suleman were armed with sword, Chitto with lathi and Naim with sword. PW1 further stated that Latif, Suleman and Ajmail had together assaulted Ejaj though he did not see how individually they were assaulting Ejaj but he was certain that all the accused persons had surrounded Ejaj. He identified accused Asad Ahmed Gaji as having worn a cap with white kurta pyjama.
42. Thus, from the above, it is evident that the defence was not successful in demolishing the evidence of PW1 in the cross-examination and PW1 remained steadfast in his testimony. In his cross-examination, PW1 was specific in identifying Latif, Suleman, Ajmail, Chitto, Naim and Asad Ahmed Gazi as being part of the ''unlawful assebly'' which had assaulted Ejaj. Thus, from the entirety of the evidence of PW1, it is quite clear that he had identified following persons as having formed ''unlawful assembly'' who were assaulting his brother Ejaj. These accused persons are:-
1. Naim Gazi,
2. Chitto,
3. Hekim,
4. Maulabi Asad Gazi,
5. Latif,
6. Suleman,
7. Ajmail
43. Statement of PW1 under Section 164 Cr.PC was recorded on 11.03.2003. This statement certainly has corroborative value and can be examined from that perspective. In this statement, he stated that he saw Maulabi Asad Gazi shouting ''kill him, kill him''. When he went to save his brother, he was attacked by accused Naim Gazi. As he moved forward, he saw accused Chitto holding a bamboo in his hand and could see accused Hekim fleeing with a stick or rod in his hand. Though he named a few other accused as having assaulted someone, such as, Latif, Suleman, Rahman, Kasim, Hekim, Osman Goni, Ajmail, Naim and Maulabi Asad Gazi, he gave specific statement only against the four accused persons as mentioned above. If this statement is considered side by side with the evidence of PW1, version of PW1 would appear to be cogent, reliable and truthful.
44. PW2 Jamal Hussain is the other brother of the deceased who was also an eye witness to the occurrence. PW2 stated that on the previous day, i.e., on 04.03.2003, his deceased brother had a quarrel with Ismail Hussain, son of Md. Asad Gazi which resulted in a fisticuff between the two. PW1 separated the two but sometime later, Latif came and spoke about Ejaj. In this connection, a case was lodged against PW1 and the deceased in Tezpur Police Station for which the two of them had to take bail on 05.03.2003. According to him, after getting bail, Ejaj sat in his counter, i.e., Himalayan Holidays'' counter and he went to Seven Sisters counter run by Afroz (PW1). His maternal uncle Tarzan Ali (PW3) also came there and they were discussing about some vehicle. After sometime, they heard a commotion in the opposite direction of the counter of PW1 and saw someone was being dragged along. PW1 went out and shouted not to assault like this as the person would die. As PW1 went ahead towards the assembly, he was followed by PW2, his maternal uncle (PW3) and Parimal (an employee of PW2). At that stage, PW1 stated that their brother Bitto i.e., Ejaj was being assaulted. PW2 stated that he saw accused persons all armed with dao, lathi, sword, etc surrounding Bitto from all sides and assaulting him. He specifically stated that accused Latif was stabbing Bitto with a sword. As he went forward to save his brother, he was hit on his head by accused Ajmail. He also suffered injury in his hand and above his eyebrow. Accused persons also assaulted PW1 when he tried to save Bitto. He stated that when PW1 embraced his brother Bitto, his intestine came out. PW1 carried Bitto to the TATA Sumo vehicle where PW2 also got into that vehicle. On way to the hospital, the vehicle stopped in front of the police station where police was verbally informed about the incident. From there, Bitto was taken to the civil hospital where the doctor declared him dead. Deceased Bitto had injuries on his chest, belly, back, hands, head, legs and everywhere.
45. In his cross-examination, PW2 reiterated that people in the assembly were shouting ''mar dalo, kat dalo'' and that he could vividly remember the incident. He also stated that when they had stopped near the police station on the way to hospital, they had told the police that accused Latif and others had assaulted Ejaj (Bitto). There was no time to narrate the whole incident in detail as condition of Ejaj was critical. However, in his cross-examination, there is a stray statement that he, i.e., PW2 along with Parimal, Chitto (accused) and Bhutto (PW1) went in the TATA Sumo vehicle to the hospital carrying Ejaj.
46. From a close and careful analysis of the cross-examination of PW2, it does not appear that defence was successful in shaking or dislodging the testimony of PW2. There is no material contradiction in the evidence of PW1 and PW2 except in the case of Chitto.
47. As in the case of PW1, statement of PW2 was also recorded under Section 164 Cr.PC on 20.03.2003. In this statement while narrating the incident, PW2 stated that accused Latif was stabbing Bitto with a sword and along with Latif, there were Suleman, Rahman, Kasim, Osman, Halim, Hekim, Chitto, Asad Gazi, Ajmail, Naim, Ramzan and Ilias. Regarding accused Naim, he specifically stated that he had hacked Bitto @ Ejaj with a khukri in his hand while accused Ajmail attacked his thighs. Ajmail also hacked him on his head. He further stated that accused Asad had hacked Bitto on the back of his head with a sword and was shouting ''kill him, kill him''. Accused Suleman and Osman were also stabbing Bitto. Thus, the prosecution case against Latif, Naim, Ajmail, Asad Gaji, Suleman and Osman stood fortified.
48. This brings us to the third eye witness of the incident, namely, Tarzan Ali (PW3) who is the maternal uncle of PW1 and PW2. He also stated that while he was sitting in the counter of PW1, his nephew Jamal (PW2) and Parimal (an employee of PW2) were also present. After 4/5 minutes, he heard a commotion outside with people shouting ''kill! cut''. Hearing that, PW1 went out first followed by PW2 and Parimal. PW3 stated that he also went after them. PW1 was shouting ''don''t beat! don''t beat, he will die''. When PW1 tried to go into the crowd, he was assaulted. PW2 and Parimal were also assaulted. PW3 stated that he saw someone poking his nephew Ejaj, someone cutting him. He stated that he recognised about 10 persons in that group though there were about 10/11 persons whom he could not recognize. The 10 persons whom PW3 recognised were:
1. Latif,
2. Suleman,
3. Halim,
4. Osman Goni,
5. Rahman,
6. Naim,
7. Hekim,
8. Ajmail,
9. Asad Gaji,
10. Kasem.
49. PW3 stated that while he shouted for the police, PW1 went ahead and caught hold of his brother Ejaj whose intestine had come out. He also saw injuries on the head, hands and back of Ejaj. When he shouted, accused persons went away. He stated that Jamal Hussain (PW2), Parimal, Bhutto (PW1) and himself (PW3) took Ejaj in a car towards the hospital. PW1 had put Ejaj into the vehicle. On way to the hospital, they stopped the vehicle in front of the Tezpur Police Station and when the police came near the vehicle and saw the injured, PW1 stated about the incident clearly mentioning that members of Latif''s group had assaulted him. From there, they went to the Kanaklata Civil Hospital where the doctors declared Ejaj dead. PW1, PW2 and Parimal were also given treatment in the hospital.
50. In his cross-examination, PW3 stated that accused Kasem is the son-in-law of Maulabi Asad Gaji and brother of Latif and reiterated that in the commotion, Asad had shouted ''kill, cut''. He also stated that Parimal who had sustained injuries during the incident, had subsequently expired.
51. In his statement recorded under Section 164 Cr.PC, PW3 stated that he saw Latif, Osman, Rahman, Halim, Suleman, Kasem, Naim, Ajmail and Asad Gaji stabbing and assaulting Ejaj. They were uttering ''kill him, cut him''.
52. Thus, from a cumulative assessment of the evidence of Pws 1, 2 and 3, a vivid narration of the incident comes to light. There is great deal of commonality in the version of the said three witnesses. Though the said three witnesses are related to the deceased, that by itself would not be sufficient to discard their evidence which otherwise appear to be reliable and trustworthy to the Court. They happened to be near the place of occurrence when the incident took place and thus they became witness to the incident.
53. In Gangabhavani (supra), the Supreme Court held that evidence of a closely related witness cannot be disbelieved merely on the ground that witnesses are related to each other or to the deceased. In case, the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can and certainly should be relied upon. Again, the Supreme Court held that natural witnesses may not be labelled as interested witnesses. In case, the circumstances reveal a witness was present on the scene of occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/ deceased.
54. A comparison of the version of the three eye witnesses as discussed above clearly brings out clear and direct evidence showing involvement of the following 10 accused in the commission of the offence namely:-
1. Md. Asad Gazi,
2. Naim Gazi,
3. Hekim,
4. Latif,
5. Suleman,
6. Ajmail,
7. Halim,
8. Osman Goni,
9. Kasem
10. Rahman
55. In fact, PW3 was categorical in his evidence that he recognised the above 10 accused persons as part of the ''unlawful assembly'' assaulting Ejaj out of whom someone was poking him while someone was cutting him. Regarding Chitto, while PW1 stated that he saw him with a stick in his hand but PW2 stated in his cross-examination that Chitto accompanied them in the TATA Sumo vehicle while taking Bitto (Ejaj) to the hospital. On the other hand, PW3 is totally silent about Chitto. He was not amongst those whom he had recognised and identified as being part of the group assaulting Ejaj. In view of such inconsistency, it may not be safe to convict accused Chitto with the aid of Section 149 IPC.
56. It may be mentioned that accused Halim had subsequently expired before delivery of judgment.
57. PW 4 Dr. SP Bordoloi had examined Jamal Hussain (PW 1), Afruj Hussain (PW2) and Shri Parimal Das on 05-03-2003 at 9:30 PM. On examination of PW 1, he found the following injuries on his person :-
(1) 2" x �" x ⅙" abrasion in the middle of scalp
(2) Bruises on both hands (Dorsum) and forehead.
He opined that the injuries were simple and fresh, caused by blunt object.
On examination of PW 2, he found the following :-
Bruises over dorsum of both hands (fingers) and opined that injuries were simple and fresh, caused by blunt object.
Regarding Shri Parimal Das, after examining him, PW 4 stated that he suffered �" bruises over middle of forehead and his injury was also simple and fresh, caused by blunt weapon. In his cross examination, he stated that injury sustained by the three persons were superficial in nature without any internal impact and may have been caused by falling or dashing against hard substance.
58. Dr. Tek Bahadur Chetri, PW 5, was the Senior Medical and Health Officer, Kanaklata Civil Hospital, Tezpur, who conducted post-mortem examination on the dead body of deceased Ejaj Hussain and his findings were as under :-
" A stout male body, rigor mortis present.
(1) One sharp cut wound of size 2" x �" x �" on the middle of the forehead, placed obliquely downwards. Margins-clear, underlined bone injuries. Frontal bone fractured.
(2) One sharp cut wound of size 8" x 5" x 2" on the right side of the abdomen below the costal margin, placed transversely from mid axillary line to mid clavicular line. Margins-clear. Loops of small intestine came out through the wound. Four Nos. of cut injuries on small intestine. Full thickness of intestine is cut and intestinal contents came out through the wound. Intestinal content mixed with blood. Liver is cut on the anterior surface. Subdural haematoma present".
According to him, all the injuries were ante mortem in nature and the cause of death was due to shock and haemorrhage as a result of injuries sustained.
59. From an analysis of the medical evidence as above, what transpires is that three persons including PWs 1 and 2 had sustained injuries on different parts of their body. Injury of 2" x �" x ⅙" abrasion on the middle of scalp on PW1 or bruise sustained by Shri Parimal Das as well as other injuries sustained by PWs 1 and 2 clearly support their version of being subjected to physical assault while proceeding towards Ejaj Hussain who was being brutally assaulted by the ''unlawful assembly''. At this stage, it may be mentioned that Shri Parimal Das expired when the trial was in progress. In so far the injuries sustained by the deceased as extracted above is concerned, it is quite evident that those injuries could be co-related to the vivid description of the crime by PWs 1, 2 and 3. The nature of injuries sustained by the deceased was indicative of the brutal nature of the assault. He had one sharp cut wound of size 2" x �" x �" on the middle of the forehead with fracture of frontal bone. This clearly indicates assault by a sharp weapon like sword or dao. The other injury, one sharp cut wound of size 8" x 5" x 2" on the right side of the abdomen was again indicative of assault by sharp weapon like sword, dao, spear etc. The severity of the injury sustained due to the assault could be gauged from the fact that loops of small intestine had come out through the wound with four numbers of cut injuries on the small intestine. The liver also received cut injury. As per medical evidence, the cause of death was due to shock and haemorrhage as a result of the injuries sustained. From the kind of injuries sustained by the deceased, it is more than evident that those were capable of causing death. The injuries sustained by the deceased match the description of the three eye witnesses in their evidence regarding the assault on the deceased by the ''unlawful assembly''. Therefore, there is substantial synergy between ocular evidence and medical evidence which reinforces the prosecution narrative.
60. PW 14 Shri Nityananda Borgohain was the officer-in-charge of Tezpur Police Station at the relevant point of time. He stated that at around 8:45 pm on 05-03-2003, one injured person named Ejaj Ahmed was brought to the police station. PW1 verbally informed him that his brother was assaulted and injured by some miscreants in front of his house and that immediately they boarded the injured in a Tata Sumo vehicle and brought him to the police station. PW 14 stated that he saw the injured smeared all over with blood and was in a very critical condition. Therefore he instructed SI Nagen Saikia to take the injured to Kanaklata Civil Hospital immediately. At that time, he was not told the names of the miscreants. The information that he received was entered in the General Diary register and he exhibited the GD Entry as Exhibit 15. On 07-08-2003 he had arrested two absconding accused namely Ajmail Gaji and Naim Gaji on being informed that they had taken shelter in a line hotel. In his cross examination, he stated that neither the Tata Sumo vehicle nor PW2 had entered into the campus of the police station. He himself went near the car and saw the injured person. Based on the GD Entry, he had instructed and deputed SI Nagen Saikia (PW 15) to start the investigation. He received formal FIR at 11:45 PM of 05.03.2003, 3 hours after the GD Entry was made. He admitted that GD Entry can be considered as FIR and in this case the first GD Entry is the FIR. In the GD Entry he wrote down everything that PW 1 had told him.
61. PW 15 Shri Nagen Saikia was the Investigating Officer. He deposed that on 05-03-2003 at around 8:45 PM, one person named Afruj Hussain (PW 1) came to the police station in a Tata Sumo vehicle with his brother Ejaj in an injured condition with blood smeared all over his person. After seeing the condition of the injured very critical, the officer-in-charge made a GD Entry and asked him to investigate the case. The injured was sent to Tezpur Civil Hospital for medical examination but the injured died there. PW 15 prepared the inquest report in the hospital at 10:45 PM and recorded the statements of Jamal Hussain, Afruj Hussain and Arif Ali. He seized the blood stained clothes of the deceased vide Exhibit 9 seizure list. On the day of incident, FIR was lodged by Afruj Hussain where he mentioned the names of the accused persons. On the basis of the said FIR, Tezpur PS Case No. 160/2003 under Sections 147/148/149/448/302/325/326 IPC was registered. During the night itself, he visited the place of occurrence along with Afruj Hussain, the elder brother of the deceased, and Shri Parimal Das, an employee of the Tata Sumo counter. The place of incident was shown by the informant and Shri Parimal Das. Articles left behind by the accused were found lying at that place which were seized vide Exhibit 14 seizure list. The seized articles included one bamboo stick, one iron sword with stains of blood on it with wooden handle, one iron rod with blood stains on it, one iron dao with blood stains on it etc. In his evidence, PW 15 stated about various steps taken by him in connection with the investigation of the case. He also got statements of PW 1 and Shri Parimal Das recorded u/s 164 Cr.PC on 11-03-2003; likewise statements of PWs 2 and 3 were recorded u/s 164 Cr.PC. In his cross examination, he stated that on the basis of GD Entry No. 247 dated 05-03-2003, a case was registered. In the GD Entry, names of the accused persons were not mentioned as PW 1 stated that he was not in a proper frame of mind at that point of time. In his statement recorded at around 11:20PM on 05-03-2003 he did not mention the names of any accused person. He stated that the names of accused were mentioned in the written FIR. According to him, PW1 in his statement before him stated that a group of people armed with dao, sword and spear dragged his brother Ejaj Hussain from out of his Himalayan Holidays'' counter and assaulted him because of which he died. He stated that on the basis of the GD Entry, he started his investigation.
62. From a careful scrutiny of the evidence of the prosecution witnesses as discussed above, it is clear that there are clear, specific and cogent evidence implicating 10 accused persons in the commission of the offence as mentioned in paragraph 54 out of whom one i.e., Halim subsequently expired. There are minor discrepancies and inconsistencies in the evidence of the prosecution witnesses which is bound to be there and is quite normal. Those do not in any way derail the prosecution case.
63. In State of UP v. Naresh, (2011) 4 SCC 324, the Supreme Court held that in all criminal cases, normal discrepancies are bound to occur in the deposition of witnesses for various reasons, such as, errors of memory due to lapse of time or due to mental disposition, such as, shock and horror at the time of occurrence. Minor contradictions, inconsistencies, embellishment or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground to reject the evidence in its entirety. Exaggerations per se do not render the evidence brittle. Therefore, considering the evidence in its entirety we do not find any good ground to disbelieve the prosecution case in so far the above 10 accused persons are concerned out of whom one viz, Halim expired.
64. But before closing the appeals, it is considered necessary to deal with a few of the issues argued at length by learned counsel for the appellants.
65. The first issue is whether the GD Entry No. 247 dated 05-03-2003 which did not contain the names of any accused is the FIR or the written Ejahar lodged 3 hours thereafter with names of the accused persons is the FIR. As already noticed in the judgment, immediately after the occurrence, PW1 and others took the injured (Ejaj) in a TATA Sumo vehicle to the police station and thereafter to the civil hospital. From the evidence on record, it transpires that the said vehicle was parked outside the police station compound. Officer-in-charge of the police station, PW14, went towards the vehicle and using his mobile phone, saw the condition of the injured. At that time, i.e., about 8.45 pm, PW1 verbally informed PW14 about the incident. The oral information of PW1 was reduced to writing by PW14 but seeing the serious condition of the injured, informant was sent to the civil hospital by the said TATA Sumo vehicle. Emergency Officer of the police station, PW15, was directed to make necessary medical requisition for medical treatment of the injured and also to take necessary steps as per law. GD Entry No. 247 dated 05.03.2003 was made to that effect. Contents of the GD Entry have already been narrated and discussed in the judgment. It is not necessary to restate the same again. Suffice it to say, PW1 did not name any accused person of having assaulted his brother in the GD Entry. It has also come on record that following the said GD Entry, PW15 swung into action and took several steps in connection with investigation of the case. He went to the hospital as well as to the place of occurrence. He made seizure of blood stained clothes of the deceased, recorded statement of three witnesses and from the place of occurrence, made seizure of weapons. As responsible police officers, this was the least that was expected of PW14 and PW15. On the other hand, at about 11.45 pm on the same night, written Ejahar was lodged by PW1 naming 15 persons as accused involved in the assault of his brother (Ejaj). This written Ejahar was signed by the informant PW1. It is the contention of learned counsel for the appellants that accused persons were known to the informant. Yet he did not name them in the GD Entry No. 247. But in the written Ejahar lodged 3 hours thereafter, accused persons were named. According to them, the written Ejahar was an improved version lodged after due consultation and because of previous grudge and personal enmity, names of the accused were mentioned. But the written Ejahar cannot be treated as the FIR as the GD Entry would be treated as the FIR because it was first in point of time and on the basis of such information, police had already started investigation. Since there cannot be 2 FIRs relating to the same incident, the written Ejahar would be hit by Section 162 Cr.PC, it is contended.
66. Section 154 Cr.PC deals with registration of FIR in cognisable cases. Sub-Section (1) of Section 154 Cr.PC is relevant. It says that every information relating to commission of a cognisable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as may be prescribed by the State Government.
67. A careful analysis of Section 154(1) Cr.PC would go to show that it envisages fulfilment of three requirements for an information in cognisable cases to be treated as FIR. Firstly, it must be in writing or if given orally to an officer-in-charge of a police station, that shall be reduced to writing; secondly, such information as received whether in writing or reduced to writing when given orally should be read over to the informant; and finally, every such information whether in writing or reduced to writing shall be signed by the informant where after substance of the information shall be entered in a book by such officer as may be prescribed by the State.
68. Coming to the facts of the present case, if we consider the GD Entry No. 247 dated 05.03.2003, the first requirement of Section 154(1) Cr.PC was certainly fulfilled, i.e., oral information given by the informant was reduced to writing by the officer-in-charge of the police station. The second requirement cannot be said to have been fulfilled, i.e., reading over of the information to the informant. It is evident from the evidence of PWs 14 and 15 that after the information was given by PW1 to Pw14, seeing the critical condition of the injured PW14 asked them to immediately proceed to the civil hospital with instruction to PW15 to do the needful. Therefore, there could not have been any occasion to read over the information reduced to writing to PW1 who was himself in an injured condition requiring medical attention. The third requirement of the section i.e., the written information or oral information which was reduced to writing, should have the signature of the informant, was also not fulfilled as the informant (PW1) did not sign such information reduced to writing. Therefore, having regard to the mandate of Section 154 Cr.PC, GD Entry No. 247 dated 05.03.2003 cannot be said to be the FIR.
69. Having said so, it is the duty of the police to take immediate action on receipt of information about commission of a cognisable offence. Police cannot wait and defer investigation till lodging of first information in the prescribed manner when it has credible information with it about commission of a cognisable offence. Therefore, action of the police (PWs14 and 15) in starting investigation on receipt of GD Entry was fully justified and no fault can be found with such approach.
70. Therefore, written Ejahar lodged by PW1 at 11.45 pm on 05.03.2003 is the FIR where he mentioned the names of the accused persons. That being the position, question of any second FIR being filed or the written Ejahar being hit by Section 162 Cr.PC would not arise. That apart, the debate as to whether the GD Entry is the FIR or the written Ejahar is the FIR has become largely academic when we consider the evidence which surfaced during the trial and which we have carefully analysed above. Whether it is the GD Entry or the written Ejahar detailed particulars of the offence or that of the accused need not be mentioned.
71. In Gangabhavani (supra), the Supreme Court has restated the well settled legal proposition that merely not mentioning the names of all the accused persons or their overt acts elaborately or details of injuries said to have been suffered, would not render the FIR vague or unreliable. FIR is not an encyclopedia of all the facts. It is quite natural that all names and details may not be given in the FIR where a large number of accused are involved.
72. As can be seen from the materials on record, the FIR was lodged almost around midnight of 05.03.2003. It had the endorsement of Chief Judicial Magistrate, Sonitpur, Tezpur on 07.03.2003. Instead of forwarding the FIR immediately on the next day i.e., on 06.03.2003, it was sent to the Chief Judicial Magistrate, Sonitpur, Tezpur on 07.03.2003. Therefore, FIR was forwarded to the Chief Judicial Magistrate beyond 24 hours of registration but before 48 hours. Can this delay dent the prosecution case or persuade the Court to take a view that such delay was because of some manipulation in lodging of the FIR and, therefore, the prosecution version be viewed with suspicion?
73. A reading of Section 157 Cr.PC would go to show that when an officer-in-charge of a police station upon information received or otherwise has reason to suspect commission of an offence which he is empowered to investigate under Section 156 Cr.PC, he shall ''forthwith'' send a report of the same to a Magistrate empowered to take cognizance of such offence and shall proceed in person or depute one of his subordinate officers as prescribed to proceed to the place of occurrence, to investigate the case and take necessary measure(s) including arrest of the offender. Section 157 Cr.PC mentions that officer-in-charge of a police station when confronted with the information as above has to do two things. Firstly, he shall send a report to the competent Magistrate ''forthwith'' and, secondly, he shall either proceed in person or depute a subordinate officer to the place of occurrence to start investigation. So far the second aspect is concerned, officer-in-charge, i.e., PW 14 admittedly took prompt measure authorising PW15 to take necessary steps including investigation of the case. However, in so far the first requirement is concerned, there is no doubt that there was delay of more than 24 hours in forwarding the FIR to the Chief Judicial Magistrate but such delay was less than 48 hours. Having regard to the facts and circumstances of the case, in our view, such delay cannot be said to have materially affected the prosecution case. At best, it can be said to be a procedural lapse on the part of the Investigating Officer.
74. In Aqeel Ahmed (supra), the Supreme Court has held that forwarding of FIR is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit in the use of the word ''forthwith'' occurring in Section 157 Cr.PC which means promptly and without undue delay. The real purpose is to avoid possibility of improvement in the prosecution case and introduction of distorted version deliberately. However, referring to the decision in Sunil Kumar v. State of Rajasthan, (2005) 9 SCC 283, the Supreme Court observed that as a rule of universal application, it cannot be laid down that whenever there is some delay in sending FIR to the Magistrate, prosecution version becomes unreliable. It would depend upon facts of each case. Referring to Sunil Kumar (supra), it was noted that investigation was taken up immediately and certain steps in the investigation were taken. Therefore, the plea of delayed FIR or non-existent FIR was turned down. If there was any lapse on the part of the Investigating Officer, that would not affect the credibility of the prosecution version.
75. In the facts and circumstances of the case, procedural lapse on the part of the Investigating Officer would be of no consequence and would pale into insignificance in the presence of direct evidence establishing the crime and involvement of the accused persons in the commission of the crime. Police was immediately informed about the occurrence where after police swung into action and the written Ejahar was lodged three hours thereafter which delay is really not significant inasmuch as in the interregnum, the victim was declared dead in the hospital and the informant himself sustained injuries requiring medical attention. Inconsistencies here and there would not affect the sub-stratum of the prosecution case. Even if there are irregularities in the conduct of investigation, that would be of no consequence when direct evidence is available on record.
76. Regarding the plea of alibi taken by Maulabi Asad Ahmed Gazi, he had adduced four defence witnesses to prove that he was not present at the place of occurrence when the incident took place. But he did not testify himself. In his statement under Section 313 Cr.PC, he did not elaborate or explain the stand taken by him that at the time of the occurrence, he was at the mosque. In response to question No. 4, he simply stated that "On that day, I went to perform my duties as an Imam in Bhojkhowa Chapari Mosque". It is trite that if plea of alibi is taken by an accused, burden is on him to establish the plea which has to be proved with absolute certainty.
77. On thorough consideration of the evidence on record, we are of the firm view that the plea taken by accused Maulabi Asad Ahmed Gazi that he was not present at the place of occurrence when the incident took place falls flat on the face of direct evidence by the eye-witnesses who stated that they saw and heard him shouting ''Mar dalo, kat dalo'' with a sword in his hand. He was clearly identified with his attire by PW1 and PW3 as part of the ''unlawful assembly'' assaulting Ejaj. Such evidence stood corroborated by the statements of PWs 1, 2 and 3 recorded under Section 164 Cr.PC. Therefore, the plea of alibi taken by accused Maulabi Asad Ahmed Gazi cannot be accepted. The submission that he being an Assamese speaking person could not have uttered the words ''Mar dalo, kat dalo'' in Hindi is too hollow to merit serious consideration.
78. In view of the discussions made and for the reasons indicated above, we have no hesitation to hold that prosecution was successful in proving the charge against the nine accused persons, namely, 1. Md. Asad Gazi, 2.Naim Gazi, 3. Hekim, 4.Latif, 5.Suleman, 6. Ajmail, 7.Osman Goni, 8. Kasem and 9.Rahman and the learned trial Court had rightly convicted them as their presence in the place of occurrence when the offence took place was not only consistently mentioned throughout the evidence but also definite overt acts were attributed to each one of them.
79. On the other hand, from the materials on record, we are however of the view that it would not be safe to convict the remaining 6 accused appellants, namely, 1. Sajid Hussain, 2. Ilias Ali, 3. Ramjan Ali, 4. Mafizur Rahman, 5. Wasim Miraj Hussain @ Chitto and 6. Md. Munna Choudhury as they were only generally mentioned without attributing any overt act to them. In so far Wasim Miraj Hussain @ Chitto is concerned, his case has already been dealt with in paragraph 55 of the judgment. Even when Section 149 IPC is applied, some reasonable circumstance should be discernible to justify conviction.
80. In Shery v. State of UP, 1991 Supp (2) SCC 437, the Supreme Court observed that it was safe only to convict those accused persons whose presence was not only consistently mentioned throughout the evidence but also to whom some overt acts were attributed.
81. In the result, the appeals are disposed of as under:
Criminal Appeal 47/2014
82. Appeal is allowed. Conviction and sentence of all the four appellants are set aside and quashed and they are set at liberty forthwith.
Criminal Appeal 48/2014
83. Appeal is allowed. Conviction and sentence of appellant is set aside and he is set at liberty forthwith.
Criminal Appeal 17/2014
84. Appeal is dismissed. Conviction and sentence imposed on the three appellants are upheld.
Criminal Appeal 67/2014
85. Appeal is allowed. Conviction and sentence of the appellant is set aside and he is set at liberty forthwith.
Criminal Appeal 50/2014
86. Appeal is dismissed. Conviction and sentence of the appellant is upheld.
Criminal Appeal 54/2014
87. Appeal is dismissed. Conviction and sentence of the appellants are upheld.
Criminal Appeal 57/2014
88. Appeal is dismissed. Conviction and sentence of the appellant is upheld.
Criminal Appeal 71/2014
89. Appeal is dismissed. Conviction and sentence of both the appellants are upheld.
90. Office to send down the case record forthwith.
