Anima Hazarika, J.—Challenge in these two separate appeals being Criminal Appeal Nos. 229 of 2001 and 346 of 2001, are to the judgment rendered by the learned Sessions Judge, Golaghat on 22.06.2001 in Sessions Case No. 15 of 1999, whereby and whereunder the learned Sessions Judge convicted and sentenced the appellants herein, in both the appeals under Section 302 of the Indian Penal Code (in short IPC) for imprisonment of life and to pay a fine of Rs. 10,000/- each with a defaulting clause. During the pendency of the appeals before this Court, accused Dudu Ali died and therefore, the appeal stood abated so far as Dudu Ali is concerned.2. The prosecution story, sans unnecessary details, may be staled as follows:Golaghat PS Case No. 216/95 under Sections 147/148/149/448/302 IPC was regis tered by Police on the basis of an Ejahar lodged by one Munna Hussain on 26.05.95 alleging, inter alia, that twelve named accused persons including the present appellants in flicted injuries on the person of informant's elder brother and mother with dao, spear, etc. and they (the accused persons named in the said Ejahar) killed the informant's father Jabar Uddin by stabbing him with spear and hack ing with dao. On completion of investigation, police submitted charge-sheet under Sections 147/148/149/448/302/325 IPC against the 15 accused persons, namely, (i) Mafajul Hussain, (ii) Seikh Mahammad Hussain, (iii) Bubuli Ali, (iv) Akoni Ali, (v) Manik Ali, (vi) Son Ahmed, (vii) Bubu Ali, (viii) Milik Hussain, (ix) Jalil Ahmed, (x) Dudu Ali, (xi) Mokibotddin Ahmed, (xii) Mafijur Ali, (xiii) Samrat Ali, (xvi) Bulu Ali and (xv) Samsul Hussain.3. Since the offence under Section 302 IPC is exclusively triable by the Sessions Court, the case was committed to the Court of the learned Sessions Judge, Golaghat, on 04.02.99 by the concerned Magistrate. On receipt of the case records being GR Case No. 497/95 (corresponding Golaghat PS Case No. 216/95). Sessions Case No. 15 of 1999 was registered in the Court of the learned Sessions Judge, Golaghat. The learned Sessions Judge, framed charge with one head under Section 302 IPC against all the 15 accused persons. A separate charge under Section 324 IPC was also framed against accused Mokibotddin. Charges were read over and explained to the accused per sons, to which they pleaded not guilty and claimed to be tried.4.
The learned Sessions Judge, framed charge with one head under Section 302 IPC against all the 15 accused persons. A separate charge under Section 324 IPC was also framed against accused Mokibotddin. Charges were read over and explained to the accused per sons, to which they pleaded not guilty and claimed to be tried.4. During trial, prosecution examined as many as ten witnesses including the Doctor and the Investigating Officer, while the de fence took the plea of total denial. However, apart from taking the plea of total denial, one witness (DW-1) was also examined by the defence side.5. The learned Sessions Judge, Golaghat by his judgment and order dated 22.6.01 passed in the said Sessions Case No. 15 of 1999 convicted the four appellants, namely, Dudu Ali, Akoni Ali, Mafajul Hussain and Bulu Ali under Section 302 IPC and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs. 10,000/- each, in default, further rigorous imprisonment for two years. So far the charge under Section 324 IPC against the accused Mokibotddin is con cerned, the learned trial Court held that the prosecution failed to prove the same and hence, the accused Mokibotddin was acquit ted of that charge.6. Being aggrieved by the said judgment and order of conviction, the appellants Sri Dudu Ali and Sri Akoni Ali filed Criminal Appeal No. 229/01 while the other two con victs, namely, Sri Mafajul Hussain and Sri Bulu Ali filed Criminal Appeal No. 346/01 in this Court.7. We have heard Mr. T.J. Mahanta, learned counsel appearing on behalf of the appellants in Criminal Appeal No.229/01 and Mr. P.K. Roychoudhury, learned counsel ap pearing on behalf of the appellants in Crimi nal Appeal No. 346/01. Also heard Mr. K. Munir, learned Public Prosecutor, Assam.8. We have meticulously examined the evidence on record. In the instant case Munna Hussain (PW-2), Manik Hussain (PW-3), Amir Hussain (PW-4) and Sarubutol Ali (PW-7) have claimed to be eyewitnesses to the occurrence.9. PW-1, Dr. Kumud Kr. Dutta held post mortem examination on the dead body of Jabaruddin.
Also heard Mr. K. Munir, learned Public Prosecutor, Assam.8. We have meticulously examined the evidence on record. In the instant case Munna Hussain (PW-2), Manik Hussain (PW-3), Amir Hussain (PW-4) and Sarubutol Ali (PW-7) have claimed to be eyewitnesses to the occurrence.9. PW-1, Dr. Kumud Kr. Dutta held post mortem examination on the dead body of Jabaruddin. During post mortem examination, P W-1 found the following injuries: "External Injuries:(1) 1 "x 1 /2" size penetrating wound present on the left side of the chest, the margin is in verted and ragged.On dissection, the underlying skin, muscle and vessels were found to be cut and pleura and lung were found lacerated.The pleural cavity was filled up with clotted blood.(2) One sharp cut injury about 3" in length 1/2" in breadth present on the right side of the abdomen.On dissection, the underlying muscles, peri toneum and intestine were found lacerated.The peritoneal cavity is filled with clotted blood.(3) Left ear was found to be mutilated (sev ered).(4) One sharp cut injury size 3" in length, 1" in breadth present on the left side of the neck.On dissection of the wound, the underlying muscles, veins were found to be cut.(5)The oesophagus and pharynx were partly cut.(6) Others organs were found to be healthy.(7) All changes are ante-mortem."On dissection of the wounds, he found some muscles and veins cut. PW-1 in his postmortem examination report vide Ext-1 opined that the injuries are ante-mortem and the cause of death of the deceased was se vere shock and haemorrhage.Ext-1 is the post mortem report and Ext-1 (1) is the signature of P W-1.In cross-examination, P W-1 stated that all the injuries were individually fatal.10. From the evidence of PW-1, we can safely arrive at the conclusion that the de ceased died a homicidal death. Now the ques tion arises as to who had inflicted the injuries on the deceased Jabaruddin. To deal with this question we propose to look into the deposi tions of PW-2, PW-3, PW-4 and PW-7, who claimed to be the eyewitnesses to the occur rence.11. PW-2, Munna Hussain, who is the son of deceased Jabaruddin, lodge the Ejahar (Ext-2) with the police. In his deposition, PW-2 stated that they had dispute with accused Dudu Ali over land situated at the back side of their house.
PW-2, Munna Hussain, who is the son of deceased Jabaruddin, lodge the Ejahar (Ext-2) with the police. In his deposition, PW-2 stated that they had dispute with accused Dudu Ali over land situated at the back side of their house. On 26.5.95, Dudu Ali came to plough that land; however, he went back as Manik Hussain, his elder brother (PW-3) forbade him. At about 8 AM, thereafter, ac cused Dudu Ali, Akoni, Bulu Ali, Mafajul Hussain, Manik Hussain, Bubu Ali, Maina Ali, Jalil, Mukib, Munu Ali, Bubuli Ali, Bhaiti Ali, PetuaAli, Sonbaba Ali, Akon Moina, Samrat Ali and Mahammad Hussain came to their (PW-2) house being armed with dao, spear, etc. They (accused) first cut the fencings around the compound and then called the fa ther of PW-2, i.e. the deceased by name to road. His father had gone to field for plough ing at that time. So the elder sister Sabina Begum, Saheda Begum and mother Rashida Khatun came out of the house. When they reached the gate way, the accused persons had beaten them. Petua dealt a cut blow in the left hand of the mother of PW-2 with a 'khukrT. PW-2 ftirther deposed that at that time his father and elder brother, namely, Manik came towards home from the north ern side. Accused Dudu, Akoni, Bulu, Mafajul chased them, i.e. father and elder brother of PW-2, towards Yaj Ali's house. PW-2 stated that he saw the incident from the verandah of his house and then his other elder brother Bagai (P W- 4), Ali Hussain and he himself advanced towards their father and brother Manik in order to save them. His father Jabaruddin and Manik entered into the house of Yaj Ali and closed the back door. Then accused Akoni Ali, Dudu Ali and Bulu entered into the house breaking open the back side door. PW-2, Bagai (PW-4) and Ali Hussain also entered into the house shouting "don't beat", "don't beat". Going there they saw accused Akoni stabbing the deceased in his abdomen with a knife while the other three accused persons had attacked him with spear. When Bagai Ali hugged the father of PW-2 in order to save him, Milik Ali came and hit Bagai in the buttock; Bagai fell down. Then accused Akoni inflicated cut injury in the left thumb of Ali Hussain.
When Bagai Ali hugged the father of PW-2 in order to save him, Milik Ali came and hit Bagai in the buttock; Bagai fell down. Then accused Akoni inflicated cut injury in the left thumb of Ali Hussain. The father of PW-2 was lying injured inside the house of Yaj Ali. PW-2 served water to his father but he found that his father was already dead. He saw bleed ing injuries in his father's abdomen, in the portion from ear to neck, in the legs and in the chest In the meantime, somebody shouted that police were coming and hearing such shouting, the accused persons fled away. PW-2 accompanied by his brother-in-law, Insaf, went to Golaghat Police Station and lodged the Ejahar (Ext.-2) whereupon Ext.-2(1) is the signature of PW-2. Injured Bagai, Ali Hussain and Rashida Khatun (mother of P W-2) were sent to hospital. Bagai Ali's name is Amir Hussain.PW-2 was cross-examined by the defence at length. During his cross-examination, PW-2 was confronted with his statement made under Section 161 CrPC. On being so con fronted, PW-2 denied that he had not stated anything about the occurrence in the manner he had deposed in the Court. He also denied that he had stated before police that he could learn from Ali Hussain at the Police Station that the accused persons had killed his father.12. PW-3, Manik Hussain is another son of the deceased Jabaruddin. He has stated that he and his deceased father came back home from the field hearing commotion near their house and reaching near their house. He saw Dudu Ali, Akoni Ali, Bulu Ali, Mokbul, Mahammad Hussain, Samsul Hussain, Manik Hussain, Bubu Ali, Jan Ali, Mukib Ali, Munu Ali, Jalil and Bubuli near his house with weap ons etc. in search of his (PW-3) father. On thier (PW-3 and his father) reaching home, the accused persons rushed at them being armed with spear, knife (long). PW-3 and his father saw Milik Hussain coming from the northern side of Yaj Ali's house with long spear in hands; out of fear they entered into the house of Yaj Ali and closed the door. Accused persons entered into the house by breaking open the door. Entering into the room Dudu Ali stabbed his father in his abdomen with a spear, while accused Akoni hacked in the head from behind with a knife. The father of PW-3 fell down.
Accused persons entered into the house by breaking open the door. Entering into the room Dudu Ali stabbed his father in his abdomen with a spear, while accused Akoni hacked in the head from behind with a knife. The father of PW-3 fell down. Then accused Mafajul and Bulu Ali hit him (deceased) with spear. At that time, Amir Hussain (Bagai) (P. W. 4), Munna (PW-2) and Ali Hussain came and offered resistance. But accused Akoni hacked Ali Hussain in his hand with knife. The blow had cut his thumb finger. Milik Hussain hit Amir (Bagai) in the buttock with spear. Then P W-3 heard commotion outside that police were coming and on hearing such commotion, the accused persons fled away through the rear of the homestead of Yaj Ali. PW-3 further deposed that attempt had been made to beat him also, but they could not, since he had re treated. Thereafter, PW-3 found his father dead inside the house. He brought Amir (Bagai) home, where he found his mother with cut injury in her arms. He also saw swelling injuries on the person of his sister. He came to know that his mother and sisters were also beaten by the accused. PW-3 also saw two arrows, shot by Mukib and Munu Ali stick ing to batten of the walls of his house. He found his two younger brothers confined in side the house. Then PW-3 along with other injuried came to police station and after lodging the Ejahar they went to Golaghat Civil Hos pital. Amir Hussain was kept in the hospital for a month. Subsequently, police visited the place of occurrence and investigated the case. PW-3 further stated that their dispute over land was with accused Dudu, Akoni's family and Mafajul. Dudu, Akoni are maternal uncle (son of mother's uncle) of PW-3.During his cross-examination, he admit ted that he does not know who among the accused persons, had carried what type of weapons. He denied the suggestion that ac cused Milik Ali had not interrupted PW-3 and his deceased father coming from opposite side while they had been running towards Yaj Ali's house. PW-3 was also confronted with some statements made by him before police under Section 161 CrPC. All other suggestions put to him had been denied.13. PW-4, Amir Hussain is another son of deceased Jabaruddin.
PW-3 was also confronted with some statements made by him before police under Section 161 CrPC. All other suggestions put to him had been denied.13. PW-4, Amir Hussain is another son of deceased Jabaruddin. While narrating the occurrence, this witness stated, inter alia, that the accused personss (including the present appellants) came to his house being armed with various weapons like spears, bows and arrows and raised hue and cry. Having seen his father coming accompanied by Manik (PW-3), the accused namely, Dudu, Akoni, Mafajul Ali and Mafajul rushed at them. At this time, Milik Hussain came and interrupted his father in front of Yaj Ali's house. His fa ther and Manik (PW-3) entered into the house of Yaj Ali and closed the door from behind. While giving individual account of the accused persons, PW-4 stated that accused appellants Dudu, Akoni, Mafajul and Bulu entered into the house of Yaj Ali breaking open the rear doors and Milik was standing at the doorstep with spear in hand. PW-4 further stated that waiting outside the door-steps they saw accused appellant Dudu Ali hit the deceased with a spear, Akoni hacked the deceased in the neck with knife while the other accused persons stabbed the father of PW-4 with spear. PW-4 himself was hit by Milik with a spear in his right buttock and he fell down at the door-step. PW-4 further deposed that he heard Mahammad Hussain asking from the courtyard, "Have you beaten him to death?" and in reply the other accused persons said, "We have finished him." Thereafter, accused persons fled away hearing the sound of ve hicle, which they thought to be police vehicle. PW-4 found his father in a pool of blood. A spear (belonging to accused appellant Dudu Ali) stained with blood was lying near his father's dead body, PW-4 noticed injuries in the chest, belly, from ear to chest, in the knee and in the back of the head of his father. His mother, Ali Hussain and PW-4 himself were treated in the hospital.
A spear (belonging to accused appellant Dudu Ali) stained with blood was lying near his father's dead body, PW-4 noticed injuries in the chest, belly, from ear to chest, in the knee and in the back of the head of his father. His mother, Ali Hussain and PW-4 himself were treated in the hospital. He stayed at Golaghat Civil Hospital for a night and therefrom he was shifted to Nursing Home at Jorhat.During his cross-examination, the defence confronted the witness with his statements recorded by police under Section 161 CrPC; on such confrontation, PW-4 had denied that he had stated before the police that Dudu, Akoni, Bulu and Mafajul had injured his fa ther inside Yaj Ali's house; that Mahammad Hussain ordered the accused persons to beat his father to death; that he was absent at the place of occurrence etc. Other suggestions put to him have been denied.14. PW-5 and PW-6, namely, Nurul Hussain and Bhaijan Ali are reported wit nesses. PW-5 is also a witness to the seizure of the spear vide Ext.-3 and Ext.-3(1) thereon is his signature. PW-6 deposed that on hearing commotion, he came to Yaj All's mother's the place of occurrence as have been stated house and found Jabaruddin lying in a pool of by PW-2, PW-3 and PW-4 blood inside there. On being asked, Mam'k, All Hussain and others informed PW-6 that Akoni, Dudu and others had killed Jabaru ddin. He also saw injury in the buttock of Amir Hussain @ Bagai (PW-4).15. PW-7, Sarubutol, who is also an eye witness to the occurrence, is a son of the de ceased Jabaruddin. PW-7 deposed that his family had boundary dispute with Dudu Ali. While giving narratives of the occurrence, PW-7 deposed that his father offered resis tance when the accused had ploughed the land in dispute. He further stated that the ploughman then left the field un-yoking their ploughs. Thereafter, the accused persons, namely, Mafiz, Bubuli, Dudu Ali, Manik Ali, Jan Ali, Akoni Ali, Samrat, Mafajul, Mukib, Jalil Mahammad Hussain, Samsul, Bulu Ali, Parbul attacked the house of PW-7. His evi dence is fully corroborated by the evidence of other three eye witnesses in respect of the arrival of his father and Manik Hussain (P W-3) and they being chased by the accused ap pellants Bulu Ali, Akoni Ali, Dudu Ali and Mafajul Hussain.
His evi dence is fully corroborated by the evidence of other three eye witnesses in respect of the arrival of his father and Manik Hussain (P W-3) and they being chased by the accused ap pellants Bulu Ali, Akoni Ali, Dudu Ali and Mafajul Hussain. While giving account of in dividual act of the accused persons in com mission of the crime, PW-7 deposed that he and other two witnesses, i.e. PW-2 and PW-4 saw the accused appellant Dudu Ali stab bing their father with a spear in the chest first. Then accused appellant Akoni hacked their father in the back of his head with a knife from behind. When Amir (PW-4) offered resis tance, he was stabbed by Milik Ali with a spear in the buttock. PW-7 also stated that the accused appellant Dudu Ali hit him with a spear in his thumb finger. This witness, there after, gave a similar version in respect of the fact of escape of the accused persons fromDuring cross-examination, PW-7 admit ted that accused appellant Dudu Ali has filed a case against them alleging that they had killed Ali Hussain, elder brother of Dudu Ali and PW-7 is an accused in that case.16. PW-8, Dr. Bimal Kanta Bora, de posed that on police requisition, he examined Amir Hussain @ Bagai (PW-4) and found one incised wound in the right buttock, which was in his opinion, simple in nature. Ext.-4 is the injury report whereupon Ext.-4(1) is his signature.17. PW-9, Shri Rose Ahmed, Sub-Inspec tor of Police, Golaghat Police Station is the Investigating Officer (I/O for short) of the case. He deposed that the place of occur rence was the house of Yaj Ali at Sialekhaiti Babar Gaon. He found the dead body of Jabaruddin inside the house. PW-9 noticed injuries on the dead body, prepared inquest report, sent the dead body to Golaghat Civil Hospital for post mortem examination, re corded statements of witnesses, seized one spear, vide M.Ext-1. PW-9 also arrested accused Dudu Ali, Samaruddin, Munu Ali and Bubul. On 1.6.95 he was transferred to some other place and as such he could not com plete the investigation.During cross-examination, PW-9 stated that Munna (PW-2) did not tell him while re cording statement under Section 161 CrPC. that Dudu Ali had gone to field to plough.
PW-9 also arrested accused Dudu Ali, Samaruddin, Munu Ali and Bubul. On 1.6.95 he was transferred to some other place and as such he could not com plete the investigation.During cross-examination, PW-9 stated that Munna (PW-2) did not tell him while re cording statement under Section 161 CrPC. that Dudu Ali had gone to field to plough. PW-2 also did not tell PW-9 that he had seen the incident from the verandah of the house. It was not stated before him by PW-2 that he had followed the accused persons when they had chased his father and Manik. PW-2 also did not state before PW-9 that the four ac cused persons had entered into the house of Yaj All by breaking open the doors, rather he stated that they had entered into the house. PW-9 further stated that the witness (PW-2) did not explain to him anything about the oc currence. While being confronted with the evidence of Manik (PW-3), PW-9 stated that Manik (PW-3) did not tell before him that accused Akoni had hacked his father Jabaruddin in his head and Makbul had in jured the deceased with spear. PW-9 further stated that PW-3 did not tell him that Ali Hussain and Munna (PW-2) had offered re sistance to the accused persons. It was also not stated by PW-3 that the accused persons had inflicted injuries on Amir Hussain and Ali Hussain. It has been stated by PW-9 that PW-3 told him that he had fled from Yaj Ali's house for his life and had later found his father dead at than PW-9 further stated that PW-3 did not tell him that the accused persons had beaten his mother and the two sisters too. PW-3 also not stated before police that ac cused Mukib had shot arrows. This PW-9 being confronted with the evidence of PW-5 stated that the witness did not state before him that the seized spear (M.Ext-1) had been lying near the deceased, rather he stated be fore PW-9 that Manik Hussain had handed over the same to the police. PW-9 also stated that he found the spear lying at the place of occurrence. Although that is not mentioned in the seizure, it has been mentioned in the case diary.18. PW-10, Shri Deben Bora, SI of Po lice took the charge of investigation after trans fer of PW-9. PW-10 completed the investi gation and submitted charge-sheet.
PW-9 also stated that he found the spear lying at the place of occurrence. Although that is not mentioned in the seizure, it has been mentioned in the case diary.18. PW-10, Shri Deben Bora, SI of Po lice took the charge of investigation after trans fer of PW-9. PW-10 completed the investi gation and submitted charge-sheet. During investigation, P W-10 seized the wearing ap parel of the deceased, which were stained with blood. M. Exts.-2,3 and 4 are the said wear ing apparel. P W-10 recorded statements of Amir (PW-4), Ali Hussain and Bhaijan Ali (P W-6). Being confronted with the evidence of Amir (PW-4) during his cross-examination by defence, P W-10 stated that PW-4 did not state before him that accused Milik had in terrupted his (PW-4) father; rather PW-4 stated before him (P W-10) that the deceased had entered into Yaj Ali's house. P W-10 fur ther stated that PW-4 did not state before him that he (PW-4) had seen accused Dudu, Akoni, Bulu and Mafajul inflicting injuries on the person of the deceased. But PW-4 stated that chasing his father (deceased), the accused persons had entered into the house of Yaj Ali. It was also not stated by PW-4 that the ac cused persons had entered into the house of Yaj Ali breaking open the doors and that the accused persons had hit Munna and Ali Hussain with the handle of spear. PW-10 fur ther stated that PW-4 did not state before him about Mahammad Hussain's ordering the accused persons to finish and the latter's re ply that they have done the job. It was not stated by PW-4 to PW-10 that Dudu Ali's spear had been lying near the dead body. P W-4 stated that Mukib Ali hit him with iron spear. PW-10 in his cross-examination stated that PW-4 told him that he had gone to thana when the accused persons had been pursuing his father (deceased) and he did not state before PW-10 that he had seen the accused per sons killing his father.19. Defence has examined one witness, namely, Sahida Begum (DW-1), who is the wife of Ali Hussain (accused). She deposed that her husband Ali Hussain was also an ac cused in the case and after about a year of filing the case, her husband Ali Hussain was murdered.
Defence has examined one witness, namely, Sahida Begum (DW-1), who is the wife of Ali Hussain (accused). She deposed that her husband Ali Hussain was also an ac cused in the case and after about a year of filing the case, her husband Ali Hussain was murdered. The case relating to killing of her husband is pending against Manik and oth ers. This DW-1 further deposed that in the year 1995 her husband had been ploughing their land. Then Jabaruddin (deceased) be ing armed with spear, forbade her husband to plough. Then her husband chased Jabaruddin and snatched away the spear from him. Jabaruddin entered into the house of Siraj Ali and her husband late Ali Hussain killed the deceased by stabbing him with the spear. She stated that she had seen the incident while going to the field to serve meal. Thereafter, she and her husband fled away and later other people came.During cross-examination, she admitted that she had not informed the police that the murder was committed by her husband and that she knew about the incident. She further stated that though she had seen the incident she did not raise any alarm. She has also ad mitted that she did not appear before the po lice during investigation of the case.20. In the statements made by the accused persons under Section 313 Cr. PC., accused Dudu Ali specifically stated that Ali Hussain killed Jabaruddin. All the accused persons denied their involvement in the incident.21. Advancing arguments on behalf of the accused appellants, the learned counsels have strenuously argued that the depositions of PWs-2, 3, 4 and 7 are not at all reliable al though these witnesses claimed to be eyewit ness to the occurrence. All the said witnesses are closely related (son of the deceased) to the victim and therefore, thier depositions are liable to close scrutiny, more so, when the prosecution has failed to produce any inde pendent eyewitness, even though, as alleged, the occurrence took place in broad day light. On meticulous scrutiny of the depositions of the said witnesses vis-a-vis the evidence of P W-9 and PW-10 it appears that none of the PWs-2, 3, 4 and 7 is actual eyewitness to the occurrence, urged learned counsels for the appellants.In support of their submission, learned counsels appearing for the accused appellants have relied upon the decision in A nil Phukan Vs.
State of Assam, reported in (1993) 3 SCC 282 , wherein, while dealing with the question of reliability of the testimony of rela tives of the deceased, the Apex Court held that relationship of the witness with the de ceased is no ground to discard his testimony, if otherwise found to be reliable and trust worthy. However, the possibility that such a witness may also implicate some innocent persons along with the real assailant cannot be ruled out and therefore, as a matter of pru dence, the Court should look for some inde pendent corroboration of the testimony of such a witness to decide about the involve ment of the persons accused of the crime.It is further argued that in the instant case. prosecution witnesses viz. PWs-2,3,4 and 7 are interested witnesses. According to the learned counsel, a careful scrutiny of the evi dence of these witnesses reveal several con tradictions on material points. The prosecu tion has failed to bring any independent wit ness to prove the guilt of the accused and in absence of some independent corroboration relating to the involvement of the accused in the crime, this Court should be disinclined to accept the prosecution version, it is con tended.22. On the other hand, while supporting the conviction and sentence, the learned Public Prosecutor, Assam has argued that the pros ecution has successfully proved its case be yond reasonable doubt and therefore, no in terference with the impugned judgment and order of conviction is called for. The learned PP further submitted that the contradictions/omissions referred to by the learned counsels for the appellants in the evidence on record are too trivial to merit any serious consider ation. It has been strenuously argued by the learned PP, that acting on such minor omis sions or contradictions in the evidence of pros ecution witnesses, benefit of doubt cannot be extended to the accused appellants either.23. Admittedly, the eye witnesses to the alleged occurrence, as examined by the pros ecution i.e. PWs- 2, 3, 4 and 7 are the sons of the deceased. No independent witness, in cluding the owner/inmate of the house in which the incident allegedly took place has been examined by the prosecution. This is notwithstanding the fact that the prosecution evidence is to the effect that there were sev eral houses in the vicinity of the alleged place of occurrence.
No independent witness, in cluding the owner/inmate of the house in which the incident allegedly took place has been examined by the prosecution. This is notwithstanding the fact that the prosecution evidence is to the effect that there were sev eral houses in the vicinity of the alleged place of occurrence. Previous enmity between the two groups over a land dispute is also evi dent from the evidence tendered by the pros ecution. Corroboration of the evidence of the alleged eye witnesses from independent sources is also not forthcoming. However, the rule of corroboration being a rule of prudence and not a rule of law, the evidence of the al leged eye witnesses cannot be discarded merely on that score. Rather, a more correct view according to us, would be to consider the intrinsic worth of the evidence of the al leged eye witnesses by proceeding in a slow, careful and cautious manner. While doing so and in determining the culpability of the ac cused persons, the Court must also take note of the fact that the charge framed against the accused persons under Section 302 IPC is without the aid of either Section 34 or Sec tion 149 of the IPC.24. The evidence of the eye witnesses as to the immediate events prior to the alleged assault on the deceased is more or less consistent The group of accused persons, includ ing the present appellants, according to the eye witnesses, came to the house of the de ceased and immediately after the deceased along with his son Manik Hussain, PW-3 had come there, the four accused-appellants had chased the deceased and his son who took shelter in the house of one Yaj Ali. According to the eye witnesses PWs- 2, 3, 4 and 7, the four accused-appellants entered the house of Yaj Ali by breaking the door which had been bolted by the deceased and his son P.W. 3. Thereafter, the accused persons assaulted the deceased with a spear and a knife.
According to the eye witnesses PWs- 2, 3, 4 and 7, the four accused-appellants entered the house of Yaj Ali by breaking the door which had been bolted by the deceased and his son P.W. 3. Thereafter, the accused persons assaulted the deceased with a spear and a knife. While PW-2 in his evidence has stated that accused-ap pellant Akoni had stabbed the deceased with a knife on the abdomen and the other three accused-appellants had assaulted the de ceased with a spear; PWs-3, 4 and 7 have stated that it is accused Dudu Ali who had stabbed the deceased in the abdomen with a spear, while accused Akoni had hacked the deceased on the head with a knife. Both P Ws-3 and 4 have stated that the other accused-appellants had assaulted the deceased with a spear. On the other hand, PW-7 has stated that accused Dudu Ali had stabbed the de ceased with a spear on his chest. The dis crepancy with regard to the assult committed on the deceased by the accused persons as noted above, in our considered view, would not materially affect the culpability of the ac cused persons. This is because such variance in the description given by the eye witnesses has to be understood to be the outcome of normal human error, confusion and forgetful-ness on account of which the Court must con sider the evidence tendered in a case on the basis of broad possibilities instead of looking for mechanical accuracy. That apart, the ques tion of availability of evidence of specific as sault committed by the accused individually would also fall into insignificance in view of the medical report which is to the effect that each of the injuries individually was capable of being fatal. It is also our considered view that having regard to the evidence of the eye witnesses with regard to the commission of injuries either by spear of knife on the chest, abdomen and neck of the deceased by the four accused-appellants, which evidence stands corroborated by the evidence of the Doctor (P W-1), the culpability of each of the accused persons for the offence under Sec tion 302IPC must be held to be well estab lished.25.
The evidence of the sole witnesses examined by the defence, details of which have been noted earlier, is to the effect that it isher husband Ali Hussain (since expired) who had caused the death of Jabaruddin by injur ing him on the chest with a spear. The afore said defence version does not inspire confi dence of the Court as the evidence of the defence witness (D. W. 1) was tendered after her husband Ali Hussain had expired and the said version was narrated, for the first time, in Court. Considering the fact that the defence witness had not implicated her husband at any point of time during his lifetime, the Court is inclined to take the view that the evidence tendered by the said witness is not trustwor thy.26. The Court has also noticed that dur ing the cross-examination of PWs-9 and 10 i.e. the Investigating Officers of the case, the defence had tried to bring out certain contra dictions in the evidence of the prosecution witnesses, particularly with regard to what was stated in the Court by the said witnesses, but not to the Police during the course of investi gation. While it is correct that some of the incriminating circumstances as narrated by the prosecution witnesses in the Court were not reported to the Investigating Officer in the statement recorded under Section 161 Cr.PC, the Court is of the view that such discrepan cies do not effect the core of the prosecution case and, in any case, the alleged contradic tions in the evidence of the prosecution wit nesses have not been proved in the manner required under Section 145 of the Evidence Act.27. For all the aforesaid reasons, the Court is of the view that there is no infirmity in the judgment and order dated 22.6.2001 passed by the learned Trial Court in Sessions Case No. 15/99, save and except to hold that the appeal filed by Dudu Ali has abated on ac count of death of the said accused-appellant. The conviction recorded and the sentence imposed on the other three accused-appel lants is maintained and the appeal filed by them is accordingly dimissed._____________