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2018 DIGILAW 626 (GAU)

MD. SEKENDER ALI v. STATE OF ASSAM

2018-04-10

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
JUDGMENT : This Jail appeal is preferred against the judgment and order, dated 28.07.2015, passed by the learned Sessions Judge, Barpeta in Sessions Case No. 172/2012, under Section 302/34 IPC. 2. The appellants’ case, in brief, is that one Aynal Haque, son of Late Abdul Haque, resident of Kawoimari, Block II, under Sarthebari Police Station, District Barpeta, lodged an FIR, on 14.08.2008, with the Officer-in-Charge of the said Police Station alleging that on that day at about 11 a.m, when his father Abdul Haque went to see the bank of his father-in-law’s fishery, located on the backside of the house of the appellants, the appellants picked up an altercation with him, who accused them of blocking the water outlet of the fishery. The appellants Sekender Ali and Arikul Ali forcibly removed his father to their courtyard, wrapped his neck with a rope and then caused cut injuries on his head and neck by sharp cutting weapon causing severe injuries resulting in his instantaneous death. 3. Based on the above FIR, the Officer-in-Charge, Sarthebari P.S. registered Sarthebari P.S. Case No. 124/2008, under Section 302/34 IPC and endorsed the case to ASI Subodh Chandra Haloi for investigation. On completion of investigation, the Investigating Officer (I.O.) submitted Charge Sheet under Section 302/34 IPC against the appellants. As the Charge sheeted offence is exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Barpeta, committed the case under Section 209 Cr.P.C. for trial vide order, dated 06.07.2012, passed in G.R. Case No. 1528/2008 to the Court of learned Sessions Judge, Barpeta. Thereafter, on perusal of the case diary and hearing the learned counsel of both the sides, the learned Sessions Judge, Barpeta framed charges under Section 302/34 IPC against the appellants vide order, dated 21.08.2012. The appellants pleaded not guilty and claimed to be tried. In course of trial of the case, the prosecution examined as many as 9 witnesses and exhibited 9 number of documents. After closing the evidence of the prosecution side, the statements under Section 313 Cr.P.C. were recorded. The appellants pleaded not guilty and declined to examine any witness in defence. Appellant Kulchan Begum pleaded that the deceased Abdul Haque chased them. After closing the evidence of the prosecution side, the statements under Section 313 Cr.P.C. were recorded. The appellants pleaded not guilty and declined to examine any witness in defence. Appellant Kulchan Begum pleaded that the deceased Abdul Haque chased them. Learned Sessions Judge, Barpeta, on appreciation of the evidence adduced by the prosecution and after hearing the arguments advanced by the learned counsel of both the sides, held the appellants guilty of the charges and sentenced each of them to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- (five thousand only) in default to suffer rigorous imprisonment for 5 (five) months under Section 302/34 IPC. 4. Section 299 IPC defines the expression ‘culpable homicide’ and it consists of in the doing of an act-(a) with the intention of causing death;(b) with the intention of causing such bodily injury as is likely to cause death; or (c) with the knowledge that the act is likely to cause death. Section 300 IPC defines what is ‘murder’. Murder is defined as an unlawful homicide with malice a forethought and satisfies any of the requirements of the 4 (four) circumstances defined therein. Culpable homicide is not murder if the alleged criminal act of the accused is proved to have been committed under any of the 5 (five) Exceptions to Section 300 IPC. On the other hand, Section 34 IPC requires three elements to be proved. They are-(a) criminal act is done by several persons; (b) such act is done in furtherance of the common intention of all; and (c) each of such persons is liable for that act in the same manner as if it were done by him alone. 5. In view of the above requirement of facts to be proved to bring home the charges, let us look at the evidence adduced by the prosecution in the case. 6. PW 1, Md. Aynul Haque is the son of the deceased Abdul Haque and informant in the case. His evidence is that the occurrence took place, on 14.08.2008, at about 11 a.m. At the time of the occurrence, he was away at his school. When he returned home, he came to know that the appellants had killed his father. At the relevant time of the occurrence, his father went to see the fishery which belonged to his father-in-law, which is situated nearby the house of the appellants. When he returned home, he came to know that the appellants had killed his father. At the relevant time of the occurrence, his father went to see the fishery which belonged to his father-in-law, which is situated nearby the house of the appellants. On the side of the fishery, there is a canal of running water, that is, water outlet. The canal was blocked by the appellants resulting in overflowing of water which submerged the nearby areas. Having learnt that the said water outlet was blocked by the appellants, his father asked the appellants to clear the obstruction. However, the appellants picked up a quarrel with him. The appellants forcibly dragged his father away to their courtyard tying with a rope and then hacked him to instantaneous death by a dao. The said incident was witnessed by Rabia and Kalam and they narrated the incident before him. Thereafter, he lodged an FIR vide Ext. 1 with the Police. In course of investigation, the I.O. seized one plastic rope vide M. Ext. 1 and one ‘gamosa’ vide M. Ext. 2 by Ext. 5, the seizure memo. In cross-examination, he, inter-alia, deposed that when he rushed to the place of occurrence, his father was found lying dead at the courtyard of the appellants. At that time, the Police and other people were present at the place. The house of Kalam and Rabia, who are husband and wife, is situated adjacent to the house of the appellants. At the time of the incident, his deceased father was wearing a ‘lungi’ and it was stained with blood. The place of occurrence was soiled with blood. He denied the defence suggestions that he did not state before the police that the incident had taken place over blocking the water outlet of the fishery and that a quarrel had taken place over his father’s unblocking the said water outlet. 7. PW 2, Ms. Rabia Khatun was the eye witness to the occurrence and a neighbor of the deceased and the appellants. Her version is that on 14.08.2008 at about 11 a.m, the incident occurred. At that time, she was in her house compound and was collecting water from the tube-well. 7. PW 2, Ms. Rabia Khatun was the eye witness to the occurrence and a neighbor of the deceased and the appellants. Her version is that on 14.08.2008 at about 11 a.m, the incident occurred. At that time, she was in her house compound and was collecting water from the tube-well. All of a sudden, she heard a sound of screaming and thereupon, she turned around and saw the appellant Sekender Ali assaulting the deceased by a ‘dao’ and the other appellants, namely, Arikul and Kulchan pressing down the deceased on the ground. Witnessing the incident, she raised alarm. The appellant Sekender Ali fled away from the spot taking a ‘dao’ in his hand. In the meanwhile, many people gathered at the place of occurrence. Her husband Kalam Khan and Jinnat Ali also witnessed the incident. Thereafter, the son of the deceased Aynal getting the said information about the incident came to her house and she narrated the whole incident before him. Her statement was recorded by a Magistrate vide Ext. 2. 8. In cross-examination, she, inter-alia, deposed that she saw the appellant Sekender Ali assaulting thrice once on the head and twice on the neck of the deceased by a sharp edged ‘dao’ resulting in profuse bleeding. The informant is the headmaster of Balapara Anchalik High School, which is located nearby the place of occurrence. She saw the appellant Sekender running away with the ‘dao’ after causing injuries on the person of the deceased. 9. PW 3, Md. Jinnat Ali is an adjacent resident of the house of the appellants. According to him, the occurrence took place on 14.08.2008 at about 11 a.m. At that time, he was at his house. All of a sudden, he heard a sound of screaming outside his house. He stepped out of his house and advanced towards the house of the appellant Sekender. He saw the appellant Sekender running away on the southern direction of his house taking a ‘dao’ in his hand. He saw the appellant Kulchan standing at the place of occurrence and the deceased lying at the courtyard of the appellants. Thereafter, he came to know at the place of occurrence itself that the appellant Sekender killed the deceased by inflicting ‘dao’ blows. Police held inquest on the dead body of the deceased. He recognized the inquest report vide Ext. 3. Thereafter, he came to know at the place of occurrence itself that the appellant Sekender killed the deceased by inflicting ‘dao’ blows. Police held inquest on the dead body of the deceased. He recognized the inquest report vide Ext. 3. In cross-examination, he, inter-alia, deposed that he did not see the occurrence with his own eyes. The dead body of the deceased was seen lying at the courtyard of the appellants. There is no boundary wall around the house of the appellants. 10. PW 4, Ms. Ramesha Begum. Her evidence is that the occurrence took place on 14.08.2008 at about 11:30 a.m. At that time, she was driving her cows towards the grazing field. She had seen the appellants quarrelling with the deceased Abdul Haque and the appellant Sekender delivering ‘lathi’ blows on the head of Abdul Haque and as a result, his falling down on the ground. The appellant Arikul along with other appellants dragged Abdul Haque to their courtyard. Witnessing the incident, she raised hue and cry. The appellant Sekender fled away from his house taking a ‘dao’ in his hand towards the field. Thereafter, she along with other villagers went to the courtyard of the appellants. They found the dead body of the deceased bearing cut injuries on his head. Her statement was recorded by a Magistrate. 11. In cross-examination, she, inter-alia, deposed that she saw the occurrence from a distance of about 1.5 bighas of land. The appellants had dispute with the deceased regarding their boundary land. She saw the incident of quarrel taking place between the deceased and the appellants once and in the midst of the said quarrel, she saw the appellant Sekender delivering ‘lathi’ blows on the head of the deceased which entailed his fall on the ground and then dragging him away to the house of the appellants. At the relevant time of the occurrence, it was drizzling and when he saw the incident, none was present at the place. When he raised hue and cry, many people assembled at the place of occurrence. 12. PW 5, Md. Abul Kalam is an adjacent resident of the house of the appellants and an eye witness to the occurrence. On 14.08.2008, he was at his house and during that time, his wife Rabia went to fetch water from the tube-well. All of a sudden, Rabia shouted ‘assaulted! 12. PW 5, Md. Abul Kalam is an adjacent resident of the house of the appellants and an eye witness to the occurrence. On 14.08.2008, he was at his house and during that time, his wife Rabia went to fetch water from the tube-well. All of a sudden, Rabia shouted ‘assaulted! assaulted!’ On hearing the utterance of his wife Rabia, he came out of his house. He saw pressing the hand and legs of Abdul Haque by the appellants on the ground and the appellant Sekender delivering ‘dao’ blows on the neck of Abdul Haque. He saw the occurrence with his own eyes. Witnessing the incident, he also shouted ‘assaulted! assaulted!’ and thereupon, some people including the students of the nearby school arrived. The appellant Sekender fled away from the scene taking a ‘dao’ in his hand towards the field. His statement vide Ext. 3 was recorded by a Magistrate. 13. In cross-examination, he, inter-alia, deposed that he saw the appellant Sekender delivering ‘dao’ blows on the neck of Abdul Haque. Apart from this, he saw no other incident. The incident occurred in the courtyard of the appellants. 14. PW 6, Dr. Moynul Haque is the autopsy surgeon. His evidence is that on 15.08.2008, he performed the post-mortem examination on the body of the deceased Abdul Haque at Barpeta Civil Hospital and found as follows- “2. Wounds-position, and Character:- 1. Lacerated wound at the right side of scalp – 6” X 3” X 2”. 2. Depressed fracture of the right parietal bone, size 5” X 2” X 2”. 3. Large hematoma and laceration present in the right cerebral cortex with midline shifting with tentonal haniation. Size 6” X 5” X 5”. 4. Lacerated wound over the left side of chest 5” X 4” X 3”. 5. Lacerated wound right side of 3” X 2” X 1”. ” 15. In the opinion of the autopsy surgeon (P.W. 6), the cause of death of Abdul Haque was due to coma resulting from head injury. All the injuries were ante-mortem in nature caused by blunt force impact. He recognized Ext. 4, the post-mortem report. 16. PW 7, Md. 5. Lacerated wound right side of 3” X 2” X 1”. ” 15. In the opinion of the autopsy surgeon (P.W. 6), the cause of death of Abdul Haque was due to coma resulting from head injury. All the injuries were ante-mortem in nature caused by blunt force impact. He recognized Ext. 4, the post-mortem report. 16. PW 7, Md. Abdur Rahim deposed that the occurrence took place on 14.08.2008 at around 11 a.m. On that day, when he was returning home from Balapara Bazar, on his way, he, seeing people at the courtyard of the appellants, went there and enquired as to what happened from the people present at the place. On his enquiry, one Kalam told him that the appellant Sekender stabbed to death Abdul Haque. The appellant Sekender fled away from the place of occurrence. He found the dead body of the deceased lying at the courtyard of the appellant Sekender. 17. PW 8, ASI (Rtd.) Subodh Chandra Haloi was the I.O. in the case. His evidence is that on 14.08.2008, one Aynal Haque lodged an FIR with Sarthebari P.S., which was registered as Sarthebari P.S. Case No. 124/2008 under Section 302/34 IPC. The Officer-in-Charge endorsed the case to him for investigation. In course of investigation, he visited the place of occurrence, that is, the courtyard of the appellants. He found the dead body of Abdul Haque lying at the courtyard of the appellants and held the inquest on the dead body in presence of witnesses. He prepared a sketch map of the place of occurrence vide Ext. 7. Then the I.O. sent the dead body to Barpeta Civil Hospital for post-mortem examination. Appellants Arikul and Kulchan, who were found at the place of occurrence, were arrested. Appellant Sekender was found absconding. However, later on, he was arrested. On completion of investigation, he submitted the Charge Sheet vide Ext. 6 against the appellants. He seized one plastic rope and one ‘gamosa’ stained with blood by Ext. 5, the seizure memo. He got the statements of Rabia Khatun, Ramesha Begum and Abul Kalam recorded under Section 164 Cr.P.C. 18. In cross-examination, the I.O., inter-alia, deposed that the place of occurrence is situated about 10 km away from the Police Station, out of which one has to cross 5 km of road by bicycle and the remaining 5 km is motorable. He got the statements of Rabia Khatun, Ramesha Begum and Abul Kalam recorded under Section 164 Cr.P.C. 18. In cross-examination, the I.O., inter-alia, deposed that the place of occurrence is situated about 10 km away from the Police Station, out of which one has to cross 5 km of road by bicycle and the remaining 5 km is motorable. The FIR was lodged on 14.08.2008 at about 1 p.m. He did not enquire regarding the ownership of the plot of land, where the dead body was lying. Ext. 3, the inquest report is a carbon copy. He did not send the seized articles to the Forensic Science Laboratory (FSL) for examination. The seized ‘gamosa’ and the rope were found lying near the dead body. There is no house to the east of the place of occurrence except the house of Atar Ali. There are paddy field and school to the north, south and west. As an ASI, no permission was obtained from the Superintendent of Police with official memo for investigating the murder case. No incident had taken place inside the house of the appellants at the place of occurrence. 19. PW 9, Shri Rajnesh Bora is the learned Judicial Magistrate, who recorded the statements of the P.Ws under Section 164 Cr.P.C. His evidence is that, on 19.09.2008, in connection with Sarthebari P.S. Case No. 124/2008, he recorded the statements of PWs, namely, Ramesha Begum, Abul Kalam and Rabia Khatun under Section 164 Cr.P.C. He recognized Ext. 8, the statement of Ramesha Begum, Ext. 9, the statement of Abul Kalam and Ext. 2, the statement of Rabia Khatun. 20. Mr. A. Rashid, learned counsel for the appellants, submitted that the whole prosecution case has been ravaged by vital contradictions amongst the prosecution witnesses. Mr. Rashid submitted that although P.W. 2 Rabia Khatun, P.W. 3 Jinnat Ali and P.W. 5 Abul Kalam deposed to have seen the appellant Sekender Ali delivering ‘dao’ blows on the head and neck of the deceased Abdul Haque, P.W. 6, Dr. Moinul Haque, the autopsy surgeon, however, contradicted them as he did not find any injury on the neck of the deceased and held the opinion that the injuries sustained by him were caused by blunt force impact. Mr. Moinul Haque, the autopsy surgeon, however, contradicted them as he did not find any injury on the neck of the deceased and held the opinion that the injuries sustained by him were caused by blunt force impact. Mr. Rashid further submitted that the evidence of P.W. 4, Ramesha Begum to the effect that she saw the appellant Sekender assaulting on the head of the deceased, the said piece of evidence contradicts her statement under Section 161 Cr.P.C., wherein she stated that appellant Sekender gave dao blows. According to Mr. A. Rashid, learned counsel for the appellants, it is well settled position of law that if the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. In this regard, Mr. Rashid relied upon the principle laid down by the Supreme Court in Mani Ram & Ors. Vs. State of U.P., reported in 1994 Supp (2) SCC 289 and in a Division Bench judgment of this Court delivered in Sujit Bardhan Vs. State of Tripura, reported in 2008 (1) GLT 192. Therefore, Mr. Rashid submitted that having regard to the vital contradictions between the ocular evidence and the medical evidence, in regard to the injuries sustained by the deceased, the appellants are entitled to be acquitted. 21. Per contra, Mr. H. Sarma, learned Additional Public Prosecutor, submitted that from the consistent and convincing evidence available on record, the presence of the eyewitnesses at the relevant time at the place of occurrence cannot be doubted and their evidence is consistent enough, who withstood the tests of cross-examination, to show that they saw the appellants assaulting the deceased to death at their courtyard. Mr. Sarma further submitted that when the direct evidence is satisfactory and reliable, the same cannot be rejected in view of the opinion evidence of the autopsy surgeon. However, Mr. Sarma submitted that here the medical evidence clearly supports the injuries sustained by the deceased on his head, the cumulative effect of which was fatal in nature, as stated by the eyewitnesses to the occurrence which took place during day hours. 22. Perusal of the F.I.R., dated 14.08.2008, vide Ext. However, Mr. Sarma submitted that here the medical evidence clearly supports the injuries sustained by the deceased on his head, the cumulative effect of which was fatal in nature, as stated by the eyewitnesses to the occurrence which took place during day hours. 22. Perusal of the F.I.R., dated 14.08.2008, vide Ext. 1 lodged by P.W. 1, Aynal Haque, the son of the deceased Abdul Haque, reveals that the incident of killing of his father that took place, on 14.08.2008, at about 11 a.m. was immediately preceded by a quarrel between the appellants Sekender Ali, Arikul Ali and Abdul Haque over blocking of a water outlet running by the bank of the fishery of his father-in-law. The quarrel was followed by forcible removal of Abdul to the courtyard of the said appellants and hacking him to death by sharp weapon. The names of all the three appellants including the name of Kulchan Begum were mentioned in the F.I.R. as the assailants of the deceased. The evidence of P.W. 1, Aynul Haque, the informant, shows that he did not witness the occurrence as at the relevant time of the occurrence, he was at his school and by the time, he reached the courtyard of the appellants, the police personnel and other people had gathered there and further, came to know about the occurrence from the neighboring eye witnesses, namely, P.W. 2, Rabia Khatun and P.W. 5, Abul Kalam, who are husband and wife, whereupon he lodged the said F.I.R. vide Ext. 1, narrating the substance of the whole incident as was reported by them. It needs to be mentioned that an F.I.R. need not contain all the details of the incident, which may come to be lodged from any quarter, but it being the first version of the incident, the facts disclosed therein carries much significance for the purpose of corroborating or contradicting the evidence of its maker. A conjoint reading of the evidence of P.W. 1, Aynal Haque and P.W. 8, ASI Subodh Chandra Haloi, the I.O., reveals that the police launched investigation, only after the F.I.R, Ext. A conjoint reading of the evidence of P.W. 1, Aynal Haque and P.W. 8, ASI Subodh Chandra Haloi, the I.O., reveals that the police launched investigation, only after the F.I.R, Ext. 1 was received and therefore, it is not clear from the evidence adduced by the prosecution as to how the police personnel had arrived before arrival of P.W. 1, Aynal Haque at the place of occurrence, who, thereafter only, lodged the F.I.R. Be that as it may, to ascertain the backdrop of the occurrence, let us appreciate the evidence of P.W. 2, Rabia Khatun and P.W. 5, Abul Kalam. 23. According to P.W. 2, Rabia Khatun, her house is located adjacent to the houses of the deceased and the appellants and at the relevant time, she was collecting water from the tube-well installed within their house compound. Her (P.W.2) evidence reveals that all of a sudden, hearing a shrilling cry, she turned around and saw the appellant Sekender Ali hacking the deceased by a ‘dao’, while other two appellants namely, Arikul and Kulchan pressing hard the deceased on the ground. Lost in amazement, she (P.W. 2) raised alarm, whereupon, the appellant Sekender Ali fled away taking the ‘dao’ in hand and meanwhile, the villagers arrived. It is also revealed that her husband P.W. 5, Abul Kalam @ Kalam Khan and neighbor P.W. 3, Jinnat Ali witnessed the occurrence. Thereafter, P.W. 1, Aynal Haque arrived and she narrated the incident before him. She (P.W. 2) gave a statement under Section 164 Cr.P.C. In cross-examination, she (P.W. 2) reaffirmed her statement given in examination in-chief and corroborated her account of the occurrence narrated in her (P.W. 2) statement under Section 164 Cr.P.C. vide Ext. 2, recorded after 34 (thirty four) days of the occurrence on 19.09.2008. The statements of witnesses recorded under Section 164 Cr.P.C. cannot be treated as substantive evidence and no conviction can be based on the strength of such statement only. In other words, a statement under Section 164 Cr.P.C. being not a substantive evidence, it can best be used to corroborate the statement of a witness or to contradict him. The statements of witnesses recorded under Section 164 Cr.P.C. cannot be treated as substantive evidence and no conviction can be based on the strength of such statement only. In other words, a statement under Section 164 Cr.P.C. being not a substantive evidence, it can best be used to corroborate the statement of a witness or to contradict him. The defence, however, failed to shake the inherent consistency and the inherent probability of the story of the incident, the prosecution witnesses have given in their statements under Section 164 Cr.P.C. with that of their evidence, giving rise to doubt of the probative value of their evidence, as a whole, subject, of course, to further scrutiny with the evidence of the witnesses inclusive of P.W. 5, Abul Kalam @ Kalam Khan for a cumulative evaluation. 24. The above material facts stated by P.W. 2, Rabia Khatun has been corroborated by her husband P.W. 5, Abul Kalam @ Kalam Khan. His (P.W. 5) evidence shows that at the time of the occurrence, he was at home and his wife (P.W. 2) was collecting water from their tube-well and hearing her hue and cry to the effect ‘assaulted! assaulted!’, he came out of house. He (P.W. 5) saw the son of the appellant, that is, appellant Arikul Ali and the wife of appellant Sekender Ali, namely, appellant Kulchan Begum pressing hard the legs of the deceased Abdul Haque on the ground and also Arikul pressing on his chest and further, Sekender delivering ‘dao’ blows on his neck. Being shocked at the situation, he (P.W. 5) raised hue and cry and thereupon, the neighboring people and the students of the nearby school arrived and the appellant Sekender with the ‘dao’ fled the scene, that is, the courtyard of the appellants. According to him (P.W. 5), he saw the appellant Sekender delivering ‘dao’ blows on the neck of the deceased and apart from this incident, he saw no other incident. 25. Turning to the evidence of P.W. 4, Ramesha Begum, we find that she also witnessed the later part of the occurrence. From her (P.W. 4) examination-in-chief, it appears that she saw the appellants quarrelling with the deceased Abdul Haque and the appellant Sekender delivering ‘lathi’ blows on his head and further, the appellants dragging him to their courtyard. This witness (P.W. 4) reaffirmed her aforesaid evidence in-chief in cross-examination. 26. From her (P.W. 4) examination-in-chief, it appears that she saw the appellants quarrelling with the deceased Abdul Haque and the appellant Sekender delivering ‘lathi’ blows on his head and further, the appellants dragging him to their courtyard. This witness (P.W. 4) reaffirmed her aforesaid evidence in-chief in cross-examination. 26. Coming to the evidence of P.W. 3, Jinnat Ali, a neighbor, it is seen that he did not witness the actual occurrence as hearing the sound of screaming, he stepped out of home at a later point of time and only saw the appellant Sekender Ali running away on the southern direction with a ‘dao’ in hand and then found the dead body of the deceased lying at the courtyard of the appellants. P.W.7, Abdur Rahim, who also did not witness the occurrence, came later on and saw the dead body of the deceased lying at the courtyard of the appellants. 27. Be it pertinently stated that in the case of Janardan Singh Vs. State of Bihar, reported in (2009) 16 SCC 269 , the Supreme Court observed that the Court has the duty to separate the falsehood from truth, after scrutinizing the evidence carefully. It was observed that the principle of falsus in uno, falsus in omnibus is not applicable in India. Therefore, while arriving at the conclusion about the guilt of the accused, the Court has to appreciate the evidence by the yardstick of probabilities, its intrinsic worth and animus of witnesses, bearing in mind that the burden of proof in criminal trial is always on the prosecution. Further, the credibility of a witness has to be appreciated as to how he withstood the tests in cross-examination and what impression is instilled by his evidence, in the context of the facts alleged in the case. It has also to be kept in mind that as memory withers away by efflux of time, a witness may not be able to recall the exact minute details of an occurrence, which is basically dependant on the power of observation of a particular incident, which varies from person to person. 28. It has also to be kept in mind that as memory withers away by efflux of time, a witness may not be able to recall the exact minute details of an occurrence, which is basically dependant on the power of observation of a particular incident, which varies from person to person. 28. Thus, on critical analysis of the evidence of the eyewitnesses, namely, P.W. 2, Rabia Khatun, P.W. 4, Ramesha Begum and P.W. 5, Abul Kalam, as a whole, it clearly reveals that the occurrence had taken place, on 14.08.2008, at about 11/11:30 a.m., that is, in broad day light and at the relevant time, they were at their respective houses, situated nearby to the house of the appellants and further, hearing the sound of screaming, firstly P.W. 2, who was at her open house compound, quite naturally saw the incident of assault on the deceased Abdul Haque, while P.W. 4 and P.W. 5, the husband of P.W. 2, came out of their house and witnessed the occurrence as detailed above. P.W. 8, ASI Subodh Chandra Haloi, the I.O., had drawn the sketch map of the place of occurrence vide Ext. 7 and it indicates that the place of occurrence was the courtyard of the appellants, situated adjacent to the paddy field, where the occurrence got initiated. 29. It is noticed that the defence has not made any serious attempt to impeach the accuracy and credibility of the evidence tendered by the eyewitnesses, in their examination-in-chief, rather elicited and reinforced the same in material particulars in their cross-examination. However, appreciating their evidence, as a whole, we find that complicity of the appellant Sekender in the commission of the act of intentionally causing the death of Abdul Haque is not disputed. A general statement of the said eyewitnesses that the appellants Arikul and Kulchan also joined the said appellant Sekender appears to be doubtful in as much as P.W. 8, the I.O., stated that he arrested them on having found them present at the place of occurrence, while the appellant Sekender remained absconding immediately after the occurrence, which is simply denied in his statement under Section 313 Cr.P.C., without any further explanation as to where he was during the period, indicating thereby that he fled the scene after commission of the offence, as it appears from the testimony of the eye- witnesses P.Ws 2, 3, 4, and 5. The presence of the appellants Arikul and Kulchan at the place of occurrence, where the dead body of Abdul Haque was lying, immediately after the occurrence, surely indicates their involvement in the act of causing his death. 30. In Jaskaran Vs. State, reported in 1993 Cr.L J 3837, the Apex Court held that eye witnesses, when natural witnesses and their testimony are cogent and convincing, conviction can be based on it. It is hard to find a witness, whose evidence does not contain even a little amount of exaggeration of the incident, which may occur due to long time gap between the day of occurrence and the day of recording evidence during trial and therefore, one has to disengage the truth from falsehood for accepting, keeping in mind the context of the relevant social behavioral trend. 31. The next relevant question is whether the cause of death of Abdul Haque was culpable homicide amounting to murder and if so, whether his heath was caused by the appellants? There is no dispute from the defence side that the cause of death of deceased was the result of deliberate act of the assailants. The testimony of the eyewitnesses clearly establishes that Abdul Haque was hacked/assaulted to death in broad day light by means of ‘dao’/’lathi’ causing multiple injuries on his person. Their evidence is corroborated by the evidence of the autopsy surgeon P.W. 6, Dr. Moinul Haque, who performed the post-mortem examination and found the ante-mortem multiple injuries inclusive the fatal head injury caused by blunt force impact, as stated above vide Ext. 4, the postmortem report. The defence has not disputed the findings of the autopsy surgeon (P.W. 6) and no inimical relation between the prosecution witnesses and the deceased family is proved to cast doubt on their testimony. The testimony of the prosecution witnesses plus the external findings of P.W. 8, ASI Subodh Haloi, the I.O., recorded in the inquest report prepared under Section 174 Cr.P.C. vide Ext. 3 so far the wounds the deceased sustained, clearly show that Abdul Haque died in suspicious unnatural circumstances. 32. It needs to be mentioned that the Apex Court in the case of Murli Vs. State, reported in (2002) 1 SCC 351 , observed that neither the post-mortem report nor the inquest report is a substantive piece of evidence. 3 so far the wounds the deceased sustained, clearly show that Abdul Haque died in suspicious unnatural circumstances. 32. It needs to be mentioned that the Apex Court in the case of Murli Vs. State, reported in (2002) 1 SCC 351 , observed that neither the post-mortem report nor the inquest report is a substantive piece of evidence. The Apex Court held in a catena of judgments that the opinion of medical expert in the post-mortem report carries weight insofar as it relates to the cause of death. Inquest report too is a document of vital importance as it gives an earlier version of the occurrence. The object of inquest report is limited to ascertain whether the person had died under the circumstances, which were doubtful or whether the death was an unnatural one. The statement contained in the inquest report as to the extent it relates to what the I.O. saw and found is admissible in evidence. Contrary to thereof, the defence, neither eliciting through cross-examination of the prosecution witnesses nor by leading evidence, introduced any probable situation other than what is delineated through the evidence of the prosecution witnesses. 33. There are two sets of contradictory evidence of prosecution witnesses regarding the nature of weapon used by the assailants, one set of evidence shows that assault was made by sharp cutting weapon ‘dao’ and the other set shows use of blunt weapon ‘lathi’. The autopsy surgeon P.W. 6, who performed the post-mortem examination, held the opinion that the injuries sustained by the deceased were caused by blunt force impact. The weapon of assault was, however, not recovered during investigation in the case and the prosecution has not explained the reason for inability to recover the same. Be that as it may, on close scrutiny of the evidence adduced by the prosecution, we find that either the blunt side of a ‘dao’ like dangerous weapon or a blunt weapon like ‘lathi’ was used by the assailants as weapon of assault in intentionally causing the death of the deceased. Here the intention to cause death of Abdul Haque is established from the evidence of circumstances in which the assailants caused his death, the number of injuries inflicted, the situs of the wounds and the nature of weapon used. Here the intention to cause death of Abdul Haque is established from the evidence of circumstances in which the assailants caused his death, the number of injuries inflicted, the situs of the wounds and the nature of weapon used. Therefore, we have no hesitation to hold the view that the cause of death of the deceased was undoubtedly an act of ‘culpable homicide’ defined in Section 299, which amounted to ‘murder’, defined in Section 300 and punishable under Section 302 IPC beyond all reasonable doubt. 34. So far the question of identity of the assailants is concerned, we find that all the eye witnesses, namely, P.W. 2, P.W. 3, P.W. 4 and P.W. 5, as a whole, have identified the appellants, namely, Sekender Ali, Arikul Ali and Kulchan Begum as the assailants of the deceased Abdul Haque, who was unarmed at the relevant time. Their evidence is found to be cogent, credible and truthful as regards the prosecution story that following their involvement in a minor altercation over blocking of water outlet of fishery, the appellants tied off the deceased with a rope vide M. Ext. ‘A’, seized by Ext. 5, the seizure memo and took him to their house and in such a course of events, appellant Sekender inflicted fatal injuries on the head, which is a vital part of the body and also on the other parts of his body causing multiple injuries and then Sekender fled away from the scene, while Arikul and Kulchan remained at the place of occurrence, wherefrom P.W. 8, the I.O., arrested them. The presence of Arikul and Kulchan at their courtyard along with the dead-body of Abdul Haque, that is, at the place of occurrence, immediately after the occurrence, without doing anything further as would have been in normal circumstances like raising hue and cry to draw attention of the villagers reinforces a strong adverse presumption against their participation in the commission of the offence. Because it would not have been possible for the appellant Sekender alone to tie off the deceased and take him forcibly to their courtyard, lest the deceased had no reason to move to their courtyard/house, with whom an altercation had already taken place. Because it would not have been possible for the appellant Sekender alone to tie off the deceased and take him forcibly to their courtyard, lest the deceased had no reason to move to their courtyard/house, with whom an altercation had already taken place. In the instant case, the appellant Kulchan in her statement given under Section 313 Cr.P.C. obliquely lent support to the credence of the prosecution evidence stating that “they only chased after us” indicating thereby involvement of some other persons with the deceased, which names they have not brought on evidence. 35. In Joydeep Neogi Alias Bubai Vs. State of West Bengal, reported in (2009) 15 SCC 83 , the Apex Court held that- “A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine his guilt. It is not disputed that piece of conduct which is not connected with the guilt of the accused is not relevant. But at the same time, however, unnatural, abnormal or unusual behavior of the accused after the offence may be relevant circumstance against him. Such conduct is inconsistent with his innocence. So the conduct which destroys the presumption of innocence can be considered as relevant and material.” 36. Applying the above ratio of the Apex Court judgment and the corroborative, cogent and convincing evidence adduced by the prosecution, we have no hesitation to hold that the appellants are vicariously liable for their act of intentionally causing the death of Abdul Haque, in furtherance of common intention, irrespective of what specific role each of them played. Suffice it to say, that under Section 34 IPC, the element of participation of all accused persons in some action with the common intention of committing the crime is essential, which is proved in the instant case beyond all reasonable doubt. 37. Consequently, we are of the opinion that the impugned judgment and order of the learned Court below does not call for any interference and accordingly affirmed. Appeal is dismissed. Send back the LCR along with a copy of this judgment and order.