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2021 DIGILAW 187 (GAU)

Md Abdul Azit v. State Of Assam

2021-02-26

MANISH CHOUDHURY, MIR ALFAZ ALI

body2021
JUDGMENT Manish Choudhury, J. - Both these appeals -Crl. Appeal no. 158/2018 & Crl. Appeal no. 222/2018 -under Section 374 (2), Code of Criminal Procedure, 1973 ('the Code' and/or 'CrPC', for short) are preferred by four accused-appellants viz. (1) Mafizuddin, (2) Saiful Islam, (3) Abdul Azit and (4) Nobi Hussain against the judgment and order dated 31.03.2018 passed by the learned Sessions Judge, Morigaon in Sessions Case no. 46/2012, arising out of G.R. Case no. 822/2011. By the judgment and order dated 31.03.2018, all the accused-appellants have been convicted under Sections 302/34, Indian Penal Code (IPC) and they all have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/- (Rupees twenty five thousand) each, in default, to undergo further term of simple imprisonment of 6 (six) months each. 2. It was on 02.09.2011, one Ms. Asma Begum [P.W.2], daughter of Amsar Ali, resident of Baralimari (Goriapatti), Police Station -Bhuragaon, District -Morigaon lodged an Ejahar before the Officer In-Charge, Bhuragaon Police Station stating inter-alia that on 30.08.2011 last, an altercation ensued between her father, Amsar Ali and the accused-appellant, Nobi Hussain with regard to an amount of Rs. 50/- which amount Amsar Ali was to receive from the accusedappellant, Nobi Hussain as wage. It was alleged that out of said grudge, all the four accused -(1) Abdul Azit, (2) Nobi Hussain, (3) Mafizuddin and (4) Saiful Islam - armed with sharp weapons, trespassed into the house of Amsar Ali at about 9-00 p.m. on 31.08.2011 while Amsar Ali was sleeping. Allegations were to the effect that the accused, Nobi Hussain with the intention to kill, inflicted a dagger blow in the abdomen of Amsar Ali and as a result, he sustained grievous injury as he started bleeding profusely. Hearing screams of Amsar Ali, all rushed to his house. Though the accused persons could be recognized all of them had managed to run away. Amsar Ali was taken to Morigaon Civil Hospital wherefrom he was referred to Guwahati finding his condition critical. It was further mentioned that at the time of lodging the Ejahar, Amsar Ali was being treated in a hospital in Guwahati. 3. On receipt of the said Ejahar [Ext.-1], the Officer In-Charge, Bhuragaon Police Station registered a case being Bhuragaon Police Station Case no. 37/2011 (corresponding G.R. Case no. It was further mentioned that at the time of lodging the Ejahar, Amsar Ali was being treated in a hospital in Guwahati. 3. On receipt of the said Ejahar [Ext.-1], the Officer In-Charge, Bhuragaon Police Station registered a case being Bhuragaon Police Station Case no. 37/2011 (corresponding G.R. Case no. 822/2011) for offences punishable under Sections 457/326/34, IPC on 02.09.2011 and entrusted the investigation to one Sri Sarsing Terang [P.W.-6], a Sub-Inspector of Police attached to Bhuragaon Police Station. 4. During the course of investigation, the place of occurrence was visited by the Investigating Officer (I.O.) and he also recorded the statements of the witnesses under Section 161, CrPC. The victim, Amsar Ali had, in the meantime, expired in the Gauhati Medical College and Hospital (GMCH), Guwahati. The inquest on the dead body of Amsar Ali was done at the GMCH on 03.09.2011 in reference to Bhangagarh Police Station General Diary Entry no. 73 dated 03.09.2011 and Inquest Report [Ext.-2] was prepared. Thereafter, the post-mortem examination on the dead body of the deceased, Amsar Ali was done on 03.09.2011 with reference to Bhangagarh Police Station General Diary Entry no. 73 also at the GMCH and accordingly, the PostMortem Examination Report [Ext.-3] was prepared. After the death of the deceased, the I.O. made a prayer before the learned court to add Section 302, IPC against the accused persons and accordingly, Section 302, IPC was added in Bhuragaon Police Station Case no. 37/2011. During the course of investigation, the I.O. arrested the accused, Abdul Azit. But the other accused persons could not be arrested during the course of investigation and they were shown as absconders. 5. On completion of investigation, the I.O. submitted a charge sheet being Charge Sheet no. 06/2012 dated 26.03.2012 [Ext.-4] finding a prima facie case against three accused persons viz. (1) Abdul Azit [A-1]; (2) Nobi Hussain [A-2]; and (3) Mafizuddin [A-3] for commission of offences under Sections 357/302/34, IPC. On the ground of not finding sufficient incriminating materials against the other named accused person, Saiful Islam by the I.O., a prayer in the charge sheet was made to discharge said Saiful Islam. 6. Subsequent to submission of the charge sheet and on appearances of the three chargesheeted accused persons before the Court of learned Judicial Magistrate, First Class, Morigaon, the copies were furnished to the three charge-sheeted accused persons under Section 207, CrPC. 6. Subsequent to submission of the charge sheet and on appearances of the three chargesheeted accused persons before the Court of learned Judicial Magistrate, First Class, Morigaon, the copies were furnished to the three charge-sheeted accused persons under Section 207, CrPC. As the offence under Section 302, IPC was exclusively triable by the Court of Sessions, the case record of G.R. Case no. 822/2011 stood transmitted to the Court of Sessions, Morigaon by an order of commitment dated 11.06.2012 by the learned Judicial Magistrate, First Class, Morigaon as per the provisions of Section 209, CrPC. 7. Before the Court of Sessions, Morigaon, the learned Public Prosecutor and the learned defence counsel were heard on the point of charge and upon perusal of the materials available in the case records, charges under Sections 302/34, IPC were framed against the three chargesheeted accused persons on 25.06.2012. The charges were read over and explained to the accused persons and they pleaded not guilty and claimed to be tried. The prosecution started examining the witnesses and during the course of trial, the fourth accused person, Md. Saiful Islam [A-4], son of Late Eshahaque Ali was arraigned as an accused invoking the power under Section 319 of the Code by the learned Sessions Judge and on his appearance, charges were also framed against him under Sections 302/34, IPC, on 01.08.2014, to which he pleaded not guilty, thereby, claiming trial. 8. During the course of trial, a total of 8 (eight) prosecution witnesses were examined by the prosecution side and those witnesses were also duly cross-examined by the defence. The prosecution witnesses were :- (1) P.W.1 -Md. Innas Ali; (2) P.W.2 -Mustt. Asma Begum; (3) P.W.3 -Md. Nurul Haque; (4) P.W.4 -Md. Hakim Uddin; (5) P.W.5 -Md. Sahar Ali; (6) P.W.6 -Sri Sarsing Terang; (7) P.W.7 -Dr. Nayan Kumar Das; and (8) P.W.8 -Sri Rudra Kanta Bora. After completion of recording of evidence, the examination of the accused persons was made under Section 313, CrPC. The plea of the accused persons during the examination under Section 313, CrPC was of total denial and innocence. The defence also examined 2 (two) witnesses :- (1) D.W.1 -Md. Nobi Hussain [A-1] and (2) D.W.2 -Md. Abdul Kadir. After completion of recording of evidence, the examination of the accused persons was made under Section 313, CrPC. The plea of the accused persons during the examination under Section 313, CrPC was of total denial and innocence. The defence also examined 2 (two) witnesses :- (1) D.W.1 -Md. Nobi Hussain [A-1] and (2) D.W.2 -Md. Abdul Kadir. Thereafter, the learned trial court finding all the four accused persons guilty of the charges framed under Sections 302/34, IPC, has convicted and sentenced them by the impugned judgment and order dated 31.03.2018, as mentioned above. Hence, the instant appeal. 9. We have heard Mr. D.K. Bhattacharya, learned counsel for the accused-appellants and Mr. M. Phukan, learned Additional Public Prosecutor for the State. 10. Mr. Bhattacharya, in his submissions, has submitted that there were discrepancies and inconsistencies in the testimonies of the prosecution witnesses. Though P.W.1, P.W.2, P.W.3 and P.W.5, who were related witnesses, claimed either to have arrived at the place of occurrence immediately after the incident or to be at the place of occurrence at the time of incident their evidence were found at variance with each other. Thus, there were doubts about their very presence at the place of occurrence. They were found to have made improvements in their versions when they deposed initially and also after arraignment of the fourth accused during the course of trial. Such improvements were made on material points and the same have thrown serious doubt about the manner of occurrence of the incident itself when the same are examined in relation to the medical evidence. The medical evidence does not go to support the versions projected by these witnesses, he submits. He has further submitted that the prosecution had chosen not to examine a vital witness, Md. Saiful Islam, son of Abdul Khaleque who was at the scene immediately after the alleged incident. Assailing the version in the Ejahar, he has submitted that the delayed Ejahar was lodged projecting a concocted story in order to rope in the accused persons falsely. He has, thus, submitted that the accused-appellants should be acquitted of the charges by allowing the appeals. 11. Learned Additional Public Prosecutor has, on the other hand, supported the findings recorded in the impugned judgment and order of the learned trial court. He has submitted that the prosecution witnesses were consistent in their versions on all the material points. He has, thus, submitted that the accused-appellants should be acquitted of the charges by allowing the appeals. 11. Learned Additional Public Prosecutor has, on the other hand, supported the findings recorded in the impugned judgment and order of the learned trial court. He has submitted that the prosecution witnesses were consistent in their versions on all the material points. The discrepancies and inconsistencies, alleged by the defence, were minor in nature. The presence of all the four accused persons as assailants at the place of occurrence and the consequent assault on the deceased which ultimately led to his death after a few days, cannot be doubted from such minor discrepancies and inconsistencies. According to him, the oral versions and the medical evidence were consistent with each other. In that view of the matter, the learned trial court has rightly convicted the accused-appellants by the judgment and order dated 31.03.2018. 12. We have duly considered the rival submissions advanced by the learned counsel for the parties and also perused the materials available in the case record of Sessions Case no. 46/2012 including the testimonies of all the witnesses, in original. 13. P.W.1 and P.W.2 were the son and the daughter respectively of the deceased, Amsar Ali. While P.W.3 was a grandson of the deceased, P.W.5 was a nephew of the deceased. P.W.4 was a co-villager. P.W.6 was the Investigating Officer (I.O.) of the case and P.W.7 was the Medical Officer, posted at the GMCH on 03.09.2011, who conducted the autopsy on the deceased in the GMCH on that day and prepared the Post-Mortem Examination Report [Ext.-3]. P.W.8 was the Officer In-Charge, Bhuragaon Police Station, who submitted the charge sheet in the case. The accused-appellant, Nobi Hussain in his testimony as D.W.1 took the plea of alibi and D.W.2, who was the father-in-law of Nobi Hussain, supported the version of D.W.1. 14. P.W.1 deposed, in his initial testimony, to the effect that the occurrence took place at about 9-00 p.m. on the date of the incident when he was sleeping in his residence. Having heard hue and cry from the compound of his father's residence, located at a distance of about twenty nals, he ran to his father's place with a torch light in his hand. Before entering the compound of his father, he met Abdul Azit [A-1] and Saiful Islam [A-4] on the road and they were proceeding towards western side. Having heard hue and cry from the compound of his father's residence, located at a distance of about twenty nals, he ran to his father's place with a torch light in his hand. Before entering the compound of his father, he met Abdul Azit [A-1] and Saiful Islam [A-4] on the road and they were proceeding towards western side. He also saw Nobi Hussain [A-2] and Mafizuddin [A-3] running towards the western side of the residence of Amsar Ali. He could recognize them in the light emanated from his torch light. He found his father lying in the courtyard with injuries in the left side of his abdomen and in front of the door of the house. He stated that his father told him that Abdul Azit [A-1] and Saiful Islam [A-4] caught hold of him and Nobi Hussain [A-2] inflicted dagger blows in the left side of his abdomen. Mafizuddin [A-3] was seen standing in front of the door. By calling 108' ambulance service, Amsar Ali was taken to Morigaon Civil Hospital at first and finding his condition critical, the doctors at Morigaon Civil Hospital referred Amsar Ali for better treatment at the GMCH. At Guwahati, Amsar Ali was admitted in a nursing home initially and after a night there, Amsar Ali was shifted to the GMCH where after two days of treatment, Amsar Ali expired. In his cross-examination, he stated that he did not mention the names of the accused persons before the Magistrate conducting the inquest at the GMCH. According to him, P.W.4 arrived at the place of occurrence after the incident. He met two persons at the place of occurrence, namely, Saiful Islam, son of Abdul Khaleque [hereinafter referred as Saiful Islam (not accused)] who wrapped the injury of his father with a lungee and Saiful Islam [A-4], son of Ashahok Ali. His torch light was seized by the police. 15. P.W.2 had deposed, in her initial testimony, that during the time of occurrence she was inside her parental house along with her mother. It was Idd on that day and when her father was sleeping, Abdul Azit [A-1], Nobi Hussain [A-2] and Mafizuddin [A-3] entered into the house and Nobi Hussain [A-2] stabbed her father in his abdomen with a dagger while other two accused persons were catching hold of her father. It was Idd on that day and when her father was sleeping, Abdul Azit [A-1], Nobi Hussain [A-2] and Mafizuddin [A-3] entered into the house and Nobi Hussain [A-2] stabbed her father in his abdomen with a dagger while other two accused persons were catching hold of her father. She stated to be in the same room where her father was stabbed and claimed to have seen the occurrence by recognizing the accused persons in the electrical light. When she raised hue and cry, the persons from the nearby houses gathered at the place of occurrence and the accused persons fled away from the place of occurrence. Due to the injury, the intestine of her father came out. P.W.2 stated to have lodged the Ejahar on the following day of occurrence. In the cross-examination, this witness stated that the house of P.W.1 was after two houses from the house of her father and the residence of P.W.4 was in the opposite side of the road. After the occurrence, P.W.4 and Saiful Islam (not accused) came and Saiful Islam (not accused) tied the intestine with a lungee. After the incident, information was given at Bhuragaon Police Station over telephone and the Ejahar was lodged by her on the following day. 16. P.W.3 deposed initially that on the day of the incident he was in his house, which was located in front of the house of the deceased. Having heard the screams of Amsar Ali that he was stabbed, P.W.3 stated to have rushed there and saw Abdul Azit [A-1] and Saiful Islam [A-4] coming out of the house of the deceased. When he tried to catch hold of Abdul Azit [A-1], then Saiful Islam [A-4] attempted to assault him by pointed iron stick. P.W.3 also did not state anything about the presence of Mofizuddin [A-3] at the place of occurrence. When P.W.3 went inside the house he saw Amsar Ali sitting in the verandah by pressing his abdomen. When asked, Amsar Ali told him that Abdul Azit [A-1] and Saiful Islam [A-4] caught him and Nobi Hussain [A-2] stabbed at his abdomen by a dagger. In his cross-examination, this witness claimed that he arrived first at the place of occurrence and the other persons came only thereafter. 17. When asked, Amsar Ali told him that Abdul Azit [A-1] and Saiful Islam [A-4] caught him and Nobi Hussain [A-2] stabbed at his abdomen by a dagger. In his cross-examination, this witness claimed that he arrived first at the place of occurrence and the other persons came only thereafter. 17. P.W.4 who knew both the deceased and the accused persons, deposed that on the date of the incident, at about 9-00 p.m., he heard hue and cry from the house of the deceased. As he was in his house at that time, he rushed to the place of occurrence. He saw Saiful Islam (not accused) arriving there and Amsar Ali lying in the courtyard with his internal organ of stomach coming out. Then Saiful Islam (not accused) wrapped the injury with banana leaves. This witness stated that when asked, Amsar Ali could not name the persons who inflicted the injury on him. At that stage, the prosecution declared the witness hostile and proceeded to cross-examine him and he denied stating before the police that two persons caught hold of Amsar Ali and Nobi Hussain [A-2] inflicted the dagger blow in the abdomen of Amsar Ali. In his cross-examination by defence, P.W.4 stated that Saiful Islam (not accused) arrived at the place of occurrence first and he and Saiful Islam (not accused) pushed the intestine inside the stomach. As per P.W.4, P.W.1 arrived later on at the place of occurrence and P.W.2 was inside the house. Both of them stated nothing to him about the assailants. Thereafter, the other persons arrived at the place of occurrence. P.W.4 further stated that Amsar Ali at that point of time was not in a position to speak. When Amsar Ali was taken to hospital, he along with P.W.1 and others accompanied the injured, Amsar Ali to Morigaon Civil Hospital first by 108' ambulance service and thereafter, to Guwahati. 18. P.W.5 when he was initially examined, deposed that when at about 9-00 p.m. on the date of the incident, he heard hue and cry of Amsar Ali he rushed to the house of Amsar Ali. He saw Abdul Azid [A-1] and Saiful Islam [A-4] running away. He did not speak about the presence of Mofizuddin [A-3] at the place of occurrence. He also saw Nobi Hussain [A-2] running away from the house of Amsar Ali. He saw Abdul Azid [A-1] and Saiful Islam [A-4] running away. He did not speak about the presence of Mofizuddin [A-3] at the place of occurrence. He also saw Nobi Hussain [A-2] running away from the house of Amsar Ali. As the wife and the daughter of Amsar Ali raised hue and cry, Saiful Islam (not accused) came there. P.W.5 stated to have seen the abdomen of Amsar Ali coming out and Saiful Islam (not accused) tying the wound. In his cross-examination in the first round, this witness stated that as his house was at a distance of 11/2 nals from the house of Amsar Ali, he was the first person to arrive at the place of occurrence after the incident. When he arrived, he found Amsar Ali in a standing position in his house. 19. All these witnesses were examined and cross-examined once again on behalf of Saiful Islam [A-4] after his arraignment as an accused in the trial. After examination and crossexamination of P.W.6 on 31.08.2013, P.W.6 was once again cross-examined on behalf of all the accused on 06.01.2017. The testimonies of P.W.7 and P.W.8 were recorded in the similar manner. 20. In the later round, P.W.1 deposed that he heard hue and cry from his father and his sister. He admitted the presence of Saiful Islam (not accused) who tied up the stomach of his father. In cross-examination, he stated that the occurrence took place inside the house and the accused persons entered through the door. The incident occurred in a dark night. He had further stated that an operation was carried out at the GMCH and it was after operation, his father, Amsar Ali expired. P.W.3 in his re-examination, deposed that when he reached the place of occurrence, he found that the intestine of Amsar Ali had come out and Amsar Ali was lying by pressing his abdomen with his left hand. In his cross-examination, P.W.3 stated that he did not see whether Amsar Ali was attacked inside the house or outside the house. When his testimony was recorded for the second time, P.W.4 stated that he asked Saiful Islam (not accused) to wrap up the injury of Amsar Ali and he called 108' ambulance service. In the subsequent cross-examination, P.W.4 stated that when he and Saiful Islam (not accused) arrived at the place of occurrence the wife and the daughter [P.W.2] were present. When his testimony was recorded for the second time, P.W.4 stated that he asked Saiful Islam (not accused) to wrap up the injury of Amsar Ali and he called 108' ambulance service. In the subsequent cross-examination, P.W.4 stated that when he and Saiful Islam (not accused) arrived at the place of occurrence the wife and the daughter [P.W.2] were present. P.W.5 during his subsequent examination, deposed that it was after his arrival at the place of occurrence, Saiful Islam (not accused) and Lal Chand came there. In cross-examination, this witness stated that he found Amsar Ali lying in the courtyard. 21. As serious doubts about the presence of the afore-mentioned witnesses at the place of occurrence and at the time of the incident were raised by the defence, it calls for a closer analysis of the evidence on record. 22. It is no doubt true that the First Information Report (FIR)/Ejahar need not be an encyclopedia. It is not the requirement of law that every minute details of the occurrence needs to be recorded in the FIR but it must disclose the commission of an offence. Though the FIR does not constitute substantive evidence but it can surely be used as a previous statement for the purpose of either corroborating or contradicting its maker. It acts as a safeguard against improvement, embellishment and exaggeration. An omission on a material point in relation to the offence alleged to have been committed is relevant in testing the veracity of the case of the prosecution. Mere delay in lodging the FIR may not by itself be fatal to the prosecution case. However, in certain situations, the delay occurred in lodging FIR has to be considered in the background of the facts and circumstances obtaining in the case. 23. From the records as well as from the evidence of P.W.6, it has emerged that the alleged incident occurred at about 9-00 p.m. on 31.08.2011 and the written Ejahar was received at the Police Station at 12-00 noon on 02.09.2011. 24. While reporting about the alleged incident through the written Ejahar (Ext-1), P.W.2 mentioned that she along with others rushed to the place of occurrence after hearing the screams of her father. During her testimony, P.W.2 had deposed to the effect that when her father was being assaulted and stabbed, she was very much present in the same room. 24. While reporting about the alleged incident through the written Ejahar (Ext-1), P.W.2 mentioned that she along with others rushed to the place of occurrence after hearing the screams of her father. During her testimony, P.W.2 had deposed to the effect that when her father was being assaulted and stabbed, she was very much present in the same room. She stated to have seen the occurrence and recognized the accused persons and it was after hue and cry raised by her the other persons from the neighbourhood gathered at the place of occurrence. She stated that Abdul Azit [A-1], Nobi Hussain [A-2] and Mafizuddin [A-3] entered into the house and Nobi Hussain [A-2] stabbed her father in his abdomen with a dagger while other two accused persons, meaning thereby, Abdul Azit [A-1] and Saiful Islam [A-4], were catching hold of her father. After confronting this witness i.e. P.W.2 with her previous statement, it was elicited from P.W.6 that P.W.2 did not state in her previous statement under Section 161, CrPC that Abdul Azit [A-1], Nobi Hussain [A-2] and Saiful Islam [A-4] entered into the house of her father and Nobi Hussain [A-2] stabbed her father in the abdomen with a dagger while the other two accused, meaning thereby, Abdul Azit [A-1] and Saiful Islam [A-4], were catching hold of her father and the said occurrence took place before her eyes as she was present at that time. P.W.2 did not state anything about the presence of Mofizuddin [A-3] at the place of occurrence. She did not testify to the effect that Mofizuddin [A-3] was one of the assailants of her father. Yet, she named Mofizuddin [A-3] as one of the accused persons in the Ejahar lodged two days after the alleged incident. This witness was found stating before the I.O. that Amsar Ali was sleeping in a different room and on hearing his screams, she rushed to her father's room contrary to her version in the Ejahar that she rushed to the place of occurrence after hearing the screams of her father. But at another time, P.W.2 deposed that at the time of the incident she was also inside the one-room house with her father. This statement appears contrary to her testimony where she stated that the house where Amsar Ali was attacked was a one-room house and she was inside the same room. But at another time, P.W.2 deposed that at the time of the incident she was also inside the one-room house with her father. This statement appears contrary to her testimony where she stated that the house where Amsar Ali was attacked was a one-room house and she was inside the same room. She also deposed that during the time of occurrence she was inside her parental house along with her mother. It was also her testimony that her mother used to stay in a different house from her father. From the above, it is found that this witness had made three versions about the incident of assault on the deceased at different points of time and all three versions are at variance with each other on material points. In one version, this witness stated that she saw Abdul Azit [A-1], Nobi Hussain [A-2] and Saiful Islam [A-4] entering the house without naming Mofizuddin [A-3] as one of the assailants but in the Ejahar, lodged after two days, she named Mofizuddin [A-3] as one of the assailants. According to this witness, her father was inside the house. As a result, it is difficult to accept one of those versions for the purpose of corroboration with the testimony of the other witnesses. 25. From the testimony of P.W.1, it is found that he used to reside in a separate house, situated at a distance of about twenty nals from the house of his father, Amsar Ali. At the time of the incident, he was sleeping in his residence and he came to the place of occurrence on hearing alarm from the compound of his father's residence. According to this witness, he accompanied his father when he was taken for treatment immediately after the incident on 31.08.2011 to Morigaon and then, to Guwahati. After the death of Amsar Ali at the GMCH on 02.09.2011, P.W.1 was present at the time when inquest on the dead body of Amsar Ali was made by an Executive Magistrate in reference to Bhangagarh General Diary Entry no. 73 dated 03.09.2011. This witness stated that he did not name the accused persons when police recorded his statement before the Magistrate at the time of conducting the inquest at the GMCH. In his statement recorded at the time of inquest, in reference to Bhangagarh Police Station General Diary Entry no. 73 dated 03.09.2011. This witness stated that he did not name the accused persons when police recorded his statement before the Magistrate at the time of conducting the inquest at the GMCH. In his statement recorded at the time of inquest, in reference to Bhangagarh Police Station General Diary Entry no. 73/2011, P.W.1 was found to have stated that Amsar Ali expired due to assault and stabbing with a dagger. He further stated that he was not present at the time of occurrence and did not name anybody before the Magistrate. In the face of such situation, his testimony that when he was rushing towards the house of his father on hearing his father's screams, he saw all the accused persons running towards the western side of his father's house has become doubtful and unreliable. His statement regarding recognizing the accused persons in the flash of light emanating from the torch light in his hands and seizure of the said torch light by police has also become doubtful in view of non-seizure of the alleged torch light by police which had been confirmed by P.W.6 in his testimony. In his own admission, the incident occurred in a dark night. From the evidence of other witnesses, it has emerged that P.W.1 was not present at the time of incident and he was not the first person to arrive at the place of occurrence after the incident. As such, his seeing and recognizing the accused person running away from the place of occurrence during the night hours is not worthy of much credence. After confronting this witness with his statement, the defence was able to confirm through the P.W.6 i.e. the I.O. that P.W.1 did not name Saiful Islam [A-4] in his previous statement under Section 161, CrPC. His testimony of meeting Saiful Islam [A-4] at the place of occurrence is also found incredulous. He, at one time, deposed that the occurrence took place inside the house. But he did not know whether his father was attacked inside the house or outside the house. P.W.1 also stated that he found his father lying in the courtyard. There was no explanation from this witness as to how Amsar Ali was found lying in the courtyard when he was allegedly attacked inside the house. P.W. 2 did not offer any explanation in that regard. 26. P.W.1 also stated that he found his father lying in the courtyard. There was no explanation from this witness as to how Amsar Ali was found lying in the courtyard when he was allegedly attacked inside the house. P.W. 2 did not offer any explanation in that regard. 26. The version of P.W.3 was that he was the first person to arrive at the place of occurrence after hearing the screams of Amsar Ali. This witness did not say anything about the presence of P.W.2 at the residence of Amsar Ali at that point of time. Though he claimed that he saw Abdul Azit [A-1] and Saiful Islam [A-4] coming out of the house of Amsar Ali and he attempted to catch one of them and Amsar Ali told him how he was assaulted by the accused persons his such statements were confronted with by the defence during cross-examination and thereafter, it was confirmed from P.W.6 i.e. the I.O. that P.W.3 did not state as such before him. The claim of arriving at the place of occurrence first after the incident was also made by P.W.5 stating that hearing screams of Amsar Ali he rushed to the place of occurrence and saw the accused persons running away. Contrary to the testimony of P.W.1, this witness saw Abdul Azit [A-1] and Saiful Islam [A-4] running away towards the western side of the house of Amsar Ali while the other accused were found running towards the opposite direction. After having this witness confronted with such statements by defence, it was elicited from the I.O. that P.W.5 did not state before him about two accused persons running towards one side while the other two accused persons running towards the other side but stated that all the accused persons disappeared on his arrival. There were inconsistencies in his testimony regarding the presence of P.W.2 and her mother at the place of occurrence. P.W.5 also stated about the presence of Saiful Islam (not accused) at the place of occurrence. While at one stage this witness stated that on his arrival, he found Amsar Ali standing in his house but later on, he stated that he found Amsar Ali lying in his courtyard. P.W.4 who appeared to be an independent witness, had deposed that Saiful Islam (not accused) arrived first at the place of occurrence. While at one stage this witness stated that on his arrival, he found Amsar Ali standing in his house but later on, he stated that he found Amsar Ali lying in his courtyard. P.W.4 who appeared to be an independent witness, had deposed that Saiful Islam (not accused) arrived first at the place of occurrence. Both he and Saiful Islam (not accused) thereafter pushed the intestine inside the stomach and he tied the injury. This witness acknowledged the arrival of P.W.1 at the place of occurrence at a later point of time but stated about the presence of P.W.2 inside the house. The different versions of the prosecution witnesses about finding Amsar Ali sitting in the verandah or in a standing position in his house or lying in the courtyard further threw doubt in the prosecution case. 27. All the afore-said witnesses spoke about the presence of Saiful Islam (not accused) at the place of occurrence and he tying the wound with the help of a lunge/banana leaves. But the prosecution side did not adduce the evidence of this witness, who in the context of the testimonies of the other prosecution witnesses, appeared to be a vital witness. The I.O. had admitted in his testimony that he did not examine Saiful Islam (not accused) during investigation despite his name being disclosed by some of the witnesses. 28. A vital cog in the prosecution case was the alleged disclosure made by Amsar Ali about his assailants to some of the witnesses, which according to the prosecution, is to be treated as an oral dying declaration. Though P.W.5 claimed himself as the first person to arrive at the place of occurrence after hearing screams of Amsar Ali, this witness did not speak about Amsar Ali telling anything to him about his assailants. On the other hand, P.W.4 also stated that he arrived at the place of occurrence first. His testimony before being declared hostile, was to the effect that on being asked, Amsar Ali could not say the name of his assailants. In his cross-examination, P.W.4 once again asserted that Amsar Ali did not tell the names of any of the other accused persons. His testimony before being declared hostile, was to the effect that on being asked, Amsar Ali could not say the name of his assailants. In his cross-examination, P.W.4 once again asserted that Amsar Ali did not tell the names of any of the other accused persons. In so far as P.W.3 is concerned his testimony was that when asked Amsar Ali told him about involvement of three accused persons -Abdul Azit [A-1], Nobi Hussain [A-2] and Saiful Islam [A4] -in the assault but he did not state in the similar manner when he made the statement before the I.O. P.W.6 [I.O.] stated that P.W.3 did not state before him regarding Amsar Ali telling P.W.3 about the involvement of aforesaid three accused persons. He was silent about Mofizuddin [A-3]. 29. P.W.7 who was posted as Medical Officer at the Gauhati Medical College & Hospital (GMCH) on 03.09.2011, conducted post-mortem examination on the dead body of the deceased. He found the following injuries -(1) Surgical median incision in the mid line of the abdomen 18 cm in length and repaired by 17 surgical stitches, the incision is partially healed and the size is 18 cm x 2 cm x peritoneal cavity deep (surgically made incisions). (2) V shaped incision wound over the left iliac fossa (part of abdomen) repaired by ten surgical stitches; of size 12 cm x 1 cm x peritoneal cavity deep (surgical incisions). (3) Punctured wound over the right iliac fossa with drainage tube in-situ. The size of the wound 2 cm x 2 cm peritoneal cavity deep. It was opined by him that death was due to shock as a result of septic peritonitis and the injuries were antemortem and caused surgically. He further deposed that the opinion of treating surgeon was required to know the exact nature and cause of injuries and he did not make any comment about the original injuries of the deceased as he did not treat him. He further stated that peritonitis means inflammation infection which arises from injury and it might be due to surgical incision. 30. The prosecution did not examine the surgeon who did the surgical operation upon the deceased nor examined any doctor who treated him during the time the deceased was in the hospital. He further stated that peritonitis means inflammation infection which arises from injury and it might be due to surgical incision. 30. The prosecution did not examine the surgeon who did the surgical operation upon the deceased nor examined any doctor who treated him during the time the deceased was in the hospital. In the absence of such evidence, it is difficult to arrive at an unhesitant view that the genesis of the death of the deceased was the assault allegedly inflicted on him on the date of the alleged incident. No weapon of assault was recovered by the I.O. during the course of investigation and there is no medical evidence as regards use of any weapon which ultimately led to the death of the deceased. 31. As could be seen from the above discussion, each of the prosecution witnesses -P.W.1, P.W.2 and P.W.3 -had claimed that the deceased Amsar Ali had made oral dying declaration before each of them separately. P.W.1 did not speak about presence of any of the other prosecution witnesses when the deceased was telling him about the incident of assault. Because of three different versions made by P.W.2 at different points of time, it is neither safe to treat her as an eye witness nor it is easy to accept any of her three different versions. P.W.3 like P.W.1, did not disclose about presence of any other person when the deceased was telling him about the assault. P.W.4 on the other hand, had testified that when asked Amsar Ali could not say the name of the assailants. P.W.5 had claimed that he was the first person to arrive at the place of occurrence after the incident but he did not say anything about any disclosure made by Amsar Ali thereafter. On an analysis of the above testimonies of the prosecution witnesses, it is difficult to fathom that the deceased made multiple oral declarations to each of them separately, more particularly, when the independent witness, P.W.4 stated that the deceased was not in a position to tell anything at that point of time. It is trite law that a dying declaration which is voluntary, true, reliable and free from suspicious circumstances, can be made the basis of conviction, though an oral dying declaration is considered to be a weak kind of evidence. It is trite law that a dying declaration which is voluntary, true, reliable and free from suspicious circumstances, can be made the basis of conviction, though an oral dying declaration is considered to be a weak kind of evidence. It can form the basis of conviction only in the event it is found that it is trustworthy and free from every blemish to inspire confidence but in the case in hand, the making of the oral dying declaration itself had fallen into the realm of doubt and, thus, it cannot be considered safe to act upon such alleged multiple oral dying declarations reported by the above prosecution witnesses. 32. While it is true that witnesses who are related to the deceased are as competent witnesses to depose the facts as any other witnesses it is also trite law that evidence of closely related witnesses is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it. In the case in hand, the testimonies of the related witnesses, from the discussion made above, are not of such standard because of the embellishments made and their variant nature, that it can be safely relied upon. 33. In the light of the above discussion, we are of the considered view that the prosecution evidence in the instant case falls short of proving the charges under Sections 302/34, IPC against the accused-appellants beyond all reasonable doubts and as such, the conviction and sentence passed against the accused-appellants by the impugned judgment and order is found not sustainable. Accordingly, the impugned judgment and order of conviction and sentence passed against the accused-appellants is set aside. Resultantly, the two appeals are allowed. 34. By an order dated 01.08.2018 passed in I.A.(Crl.)/379/2018 in Crl. A./158/2018, the accused-appellants -Mofizuddin [A-3] and Saiful Islam [A-4] -have been enlarged on bail. By another order dated 28.03.2019 passed in I.A.(Crl.)/549/2018 in Crl. A./222/2018, this Court while allowing the accused-appellant, Abdul Azit [A-1] to be enlarged on bail, the prayer for bail in respect of the accused-appellant, Nobi Hussain [A-2] was rejected. In view of the said position, the bail bond in respect of the accused-appellants, Abdul Azit [A-1], Mofizuddin [A-3] and Saiful Islam [A-4] stand discharged. It is further directed that the accused-appellant, Nobi Hussain [A-2] who is in custody, be released forthwith, if not required in connection with any other case. 35. In view of the said position, the bail bond in respect of the accused-appellants, Abdul Azit [A-1], Mofizuddin [A-3] and Saiful Islam [A-4] stand discharged. It is further directed that the accused-appellant, Nobi Hussain [A-2] who is in custody, be released forthwith, if not required in connection with any other case. 35. Let the LCR be sent back forthwith.