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2025 DIGILAW 291 (GAU)

Arman Ali S/o Late Mokbul Ali v. State of Assam

2025-02-20

SANJAY KUMAR MEDHI, SUSMITA PHUKAN KHAUND

body2025
JUDGMENT : S.K. Medhi , J. The instant appeal has been preferred under Section 374 of the Code of Criminal Procedure, 1973 against a judgment dated 16.12.2023 and order dated 20.12.2023 passed by the learned Sessions Judge, Cachar at Silchar in Sessions Case No. 125/2018. Vide the impugned judgment, 3 nos. of accused persons have been convicted under Sections 302 / 34 of the Indian Penal Code and sentenced to undergo for life imprisonment and pay a fine of Rs.10,000/- each and in default further simple imprisonment for 3 months. The present appeal has been preferred by two nos. of appellants, namely, Arman Ali and Lukman Ali. 2. The criminal law was set into motion by lodging of an Ejahar on 07.04.2017 by the PW1, who is the wife of the victim Amir Ali. It has been alleged that on the previous evening at about 07:00 PM, the accused no. 1 Ramjan Ali had came to their house and took her husband Amir Ali to his house and after about 15 minutes the screams of the husband could be heard from the house of the accused persons. She accordingly rushed and saw the accused person no. 2, Arman Ali pulling a bloodied dagger out of the abdomen of her husband and accused Ramjan Ali fled away when he saw her. She accordingly raised an alarm whereupon the neighbours arrived and the husband was taken to the hospital for treatment whereafter he was declared dead. It may be mentioned that in the FIR, 4 no. of persons were named as accused including the present appellants as accused nos. 2 and 3. 3. After registration of the formal FIR, the investigation was done leading to framing of the charges. The charges were accordingly framed under Section 302 read with Section 34 of the IPC against accused Ramjan Ali, Arman Ali and Lukman Ali, out of which the accused nos. 2 and 3 are the appellants in this present appeal. The accused persons denied the charges and accordingly the trial had begun in which 12 nos. of prosecution witnesses were examined. 4. The informant was examined as PW1. She had deposed that present rd appellants are neighbours and the 3 accused Ramjan Ali is their relative who lives in another village. The accused persons denied the charges and accordingly the trial had begun in which 12 nos. of prosecution witnesses were examined. 4. The informant was examined as PW1. She had deposed that present rd appellants are neighbours and the 3 accused Ramjan Ali is their relative who lives in another village. She deposed that on that particular evening, accused Ramjan Ali came and called her husband and thereafter the husband followed the said accused to the house of appellant Lukman Ali. Thereafter, she heard a hue and cry of her husband and immediately rushed to the house of the accused person and could see that the husband was lying on the courtyard of the house of the accused. She deposed of witnessing Arman Ali taking out a dagger from the belly of the husband and accused Ramjan Ali was running away from there. The injured husband was accordingly taken to the Dewan Hospital wherefrom he was shifted to Laboc Hospital. The husband, however succumbed to his injuries and the body was sent for post-mortem. The ejahar was accordingly lodged in the next morning. In her cross-examination PW1 had, however stated that there was no animosity with the present appellant and the relationship was very cordial. 5. PW2 is Bhojan Bin, who is a neighbour, had deposed that hearing hue and cry in the said evening, he came to the house of the appellant and PW1 had told him that accused Ramjan Ali had caused stab injury to her husband and fled away. 6. PW3 is a Garden Worker, who appears to be a hearsay witness. In his cross-examination, he had however stated that he had put his signature on a blank paper. 7. PW4 and PW5 are seizure witnesses of the Seizure List which was exhibited as Exhibit 2. The said witnesses, however also appear to be hearsay witnesses. 8. PW6 is the daughter of the deceased and her deposition would be relevant in the adjudication of the present appeal. She had stated that on the fateful evening, they were having tea when accused Ramjan had come and told her father to accompany him to the house of the other two accused namely the appellants as they were calling him. PW6 is the daughter of the deceased and her deposition would be relevant in the adjudication of the present appeal. She had stated that on the fateful evening, they were having tea when accused Ramjan had come and told her father to accompany him to the house of the other two accused namely the appellants as they were calling him. Accordingly, her father had accompanied accused Ramjan whereafter she heard hue and cry from the house of the appellants and she and her mother (PW1) had rushed and saw that Ramjan Ali had stabbed her father by a Bujali (kind of a dagger) and Arman Ali taking out the Bujali from the chest of the father. She had also deposed of witnessing accused appellant Lukman Ali holding her father. They had accordingly raised hue and cry and the neighboring people gathered and her father was taken to the Laboc Hospital where he had succumbed to the injuries. In her cross-examination, she had clarified that they did not have any dispute with the appellants. 9. PW7 is a co-villager and has stated that he got the information from a child Jamir Uddin, who is the son of the deceased regarding the incident. He had also deposed of accompanying the deceased to the hospital. 10. PW8 is the Doctor who had conducted the post-mortem examination. He had deposed that he could detect three nos. of major stab injuries, apart from other injuries. The post-mortem report was proved as Exhibit P3. PW9, PW10 and PW11 are the Investigating Officers who had investigated the matter at different stages. PW9 had stated that he had done the initial investigation and the Inquest Report, GD Entry and Sketch Map were proved as Exhibit Nos. 5, 6 and 7. PW10 is the second I.O. who had done the investigation after PW9 had left on 06.07.2017. PW11 is the third I.O. who had submitted the Charge Sheet which was proved as Exhibit P8. 11. PW12 is the Executive Magistrate who had done the inquest and the Inquest Report was proved as Exhibit P5. The PW12 had deposed of noting three nos. of major injuries on the body of the deceased. After completion of the evidence of the prosecution, the incriminating materials against the appellants / accused were put to them in their examination under Section 313 of the CrPC wherein they had denied the allegations. The PW12 had deposed of noting three nos. of major injuries on the body of the deceased. After completion of the evidence of the prosecution, the incriminating materials against the appellants / accused were put to them in their examination under Section 313 of the CrPC wherein they had denied the allegations. After completion of the same, the learned Judge had passed the impugned judgment and order which is the subject matter of challenge in the present appeal. 12. We have heard Shri I.H. Laskar, learned counsel for the appellants. We have also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam. 13. Shri Laskar, learned counsel for the appellants has, at the outset, clarified that the present appeal is only for two appellants, namely, Arman Ali and Lukman Ali. He submits that there is no material whatsoever against his clients and the only material which is available, is against accused Ramjan Ali, who is not one of the appellants in the present appeal. It is submitted that, from the starting of the sequence of events, namely, lodging of the Ejahar till depositions of the witnesses, there is no material against his clients. He submits that the only allegation against appellant Arman is that the PW1 and PW6 had deposed of witnessing Arman Ali removing the Bujali from the chest of the deceased. It is submitted that there are materials on record to establish that the relationship between the deceased family and the appellants were very cordial and good and there is no instance of any animosity. It is submitted that the action of the appellants were only to save the deceased when he was stabbed by the accused Ramjan Ali. 14. The learned counsel has submitted that from the contents of the FIR and the depositions of PW1 and PW6, no allegations of any nature can be made out against Lukman Ali. It is submitted that even the PW6 in her deposition had submitted that Lukman Ali was only holding the deceased after he was attacked by accused Ramjan Ali. He submits that there was no motive or intention on the part of his clients which can be gathered from the materials on record. He has submitted that the evidence of PW2, Bhojan Bin is corroborated by the evidence of PW1 and PW6. He submits that there was no motive or intention on the part of his clients which can be gathered from the materials on record. He has submitted that the evidence of PW2, Bhojan Bin is corroborated by the evidence of PW1 and PW6. Bhojan Bin had deposed that PW1 had told him that it is accused Ramjan who had stabbed her husband and fled away. The aspect that the two appellants were very much in the site even after the incident and not fleeing away would show their innocence and the fact that they were not involved with the offence and had rather tried to save the deceased. 15. The learned counsel accordingly submits that the judgment of conviction and sentence, so far as his clients are concerned are liable to be interfered with, and the benefit of doubt is to be given to them. In support of his submission, he has relied upon the following case laws: i. Jaikam Khan Vs. State of Uttar Pradesh [(2021) 13 SCC 716] ii. Pradeep Kumar Vs. State of Chhattisgarh [(2023) 5 SCC 350] iii. State of U.P. Vs. Ram Swarup and Anr. [(1974) 4 SCC 764] 16. In the case of Jaikam Khan (supra), the aspect of requirement of proof beyond all reasonable doubt has been laid down. For ready reference, the relevant observations are extracted hereinbelow- “84. We may gainfully refer to the following observations of this Court in the case of Anand Ramachandra Chougule v. Sidarai Laxman Chougala: ‘10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the ac- cused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 11. The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 11. The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot be come the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand, this Court observed : 28. … When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case be yond reasonable doubt.’ …” 17. In the case of Ram Swarup (supra), the Hon’ble Supreme Court has laid down that unlike a civil case where pleadings are necessary to be there to establish a case, in a criminal case such pleadings are not necessary and an argument can be made on the basis of the materials on record. In the case of Pradeep Kumar (supra), the aspect of requirement of proof beyond all reasonable doubt in a criminal case has been laid reiterated. 18. Per contra, Ms. Begum, the learned APP has submitted that the materials on record including the evidence, more particularly, those of the PW 6 and PW 1 would be sufficient to uphold the conviction. She has highlighted that in a criminal case it is not the quantity of evidence but the quality which is material. She has submitted that PW 6 is an eyewitness in this case and her evidence is trustworthy and inspires confidence. Based on the said evidence itself, the conviction and sentence are liable to be sustained. 19. By drawing the attention of this Court to the evidence of PW 6, the daughter of the deceased, the learned APP has submitted that she had made a clear statement that she could see the accused Ramjan stabbing her father and fleeing away. Based on the said evidence itself, the conviction and sentence are liable to be sustained. 19. By drawing the attention of this Court to the evidence of PW 6, the daughter of the deceased, the learned APP has submitted that she had made a clear statement that she could see the accused Ramjan stabbing her father and fleeing away. She could also see that accused Arman had taken out the dagger from the chest of her father and accused Lukman was alongside the deceased. The learned APP has submitted that the injuries, as described by the ocular evidence are corroborated by the evidence of the Doctor (PW8) who had conducted the post-mortem. It is submitted that the injuries were not one but there were a number of injuries including two major injuries. It is submitted that one prosecution witness is enough to sentence and convict an accused and in this case PW 6 is a trustworthy witness. 20. The APP has submitted that from the statements made before the Police by the informant, it transpires that the distance from the house of the deceased to the house of the appellant is about 20 meters and admittedly the body of the deceased was found in the courtyard of the house of the appellant. 21. In support of her submission, she has cited the case of Kartik Malhar Vs. State of Bihar reported in (1996) 1 SCC 614 wherein it has been laid out that a single witness would be enough, if found to be reliable. For ready reference, the relevant observations are extracted hereinbelow- “ 14. We have already discussed above that it is open to the courts to record a conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eyewitness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eyewitnesses. The instant case, it may be pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. The instant case, it may be pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. Here, three of the witnesses were produced but two of them turned hostile leaving the third alone and, therefore, on the principles already discussed, if the remaining eyewitness is found to be trustworthy, it becomes the duty of the court to convict the accused as observed by this Court in Vadivelu Thevar quoted below: ‘But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.’ …” 22. The learned Additional Public Prosecutor has also relied upon the case of State of Rajasthan Vs. Dhool Singh reported in (2004) 12 SCC 546 to contend that the aspect of non exhibiting of the murder weapon would not be fatal for a prosecution case if the other materials are enough to come to a conclusion of guilt. The said case law has been cited as, in the instant case, the Bujali was not exhibited as material exhibit. The relevant observations are extracted hereinbelow- “14. … In our opinion, such an injury cannot but be caused by a sharp-edged weapon; be it a sword as alleged by the prosecution or some other sharp-edged weapon. Assuming that the prosecution has not established that this injury was caused by a particular sword as alleged by it, it is clear that this injury has been caused by a sharp-edged cutting weapon; be it a sword or otherwise. Assuming that the prosecution has not established that this injury was caused by a particular sword as alleged by it, it is clear that this injury has been caused by a sharp-edged cutting weapon; be it a sword or otherwise. The fact that the respondent has caused this injury is accepted by both the courts below which finding is not under challenge before us, therefore, it goes without saying that the respondent has caused this injury with a sharp-edged weapon, hence the factum of not proving that those injuries were caused by a particular sword measuring 3 ft would not in any manner prevent us from coming to the conclusion that the injuries were caused by the respondent with such a weapon which causes incised cut injuries, therefore, the argument of the learned counsel that non-production of the weapon would not establish an offence under Section 302, cannot be accepted. …” 23. Shri Laskar, the learned counsel for the appellants, in his rejoinder, has however submitted that so far as appellant Lukman is concerned, the PW 6 had clearly deposed that he was simply found holding the deceased. He had also drawn the attention of this Court to the statement of the said PW 6 recorded under Section 161 of the CrPC wherein she had stated that appellant Lukman was sitting alongside her father. He has submitted that no role, whatsoever was attributed to Lukman. He has also highlighted that from the ocular evidence of PW6 and PW1, even for appellant Arman, his activity only would be consistent with an attempt to save the deceased by pulling out the dagger. 24. The rival submissions have been duly considered and the materials, including the LCR placed before this Court have been carefully examined. 25. In the instant case, out of the 12 nos. of PWs, there are two witnesses, namely, PW 1 - the informant and PW 6 - the daughter who were present at the place of occurrence. PW 6 is an eyewitness, who had deposed of witnessing appellant Ramjan stabbing her father with a bujali at the courtyard of the house of the appellants and Arman taking out the bujali from the chest. There is no statement by any of the witnesses of witnessing either of the two appellants inflicting any injuries to the deceased. PW 6 is an eyewitness, who had deposed of witnessing appellant Ramjan stabbing her father with a bujali at the courtyard of the house of the appellants and Arman taking out the bujali from the chest. There is no statement by any of the witnesses of witnessing either of the two appellants inflicting any injuries to the deceased. The allegation against appellant Arman is of removing the Bujali from the chest of the deceased and so far as appellant Lukman is concerned, PW 6 had deposed that he was holding her father. 26. The other relevant aspects of the matter is that there is no material on record to suggest that the two appellants, after the incident, had tried to flee and they were very much present at the place of occurrence when the neighbours had come. On the other hand, it is accused Ramjan Ali who had fled away and was apprehended subsequently. The learned counsel for the appellants has also laid great stress on the deposition of PW 1 in which she had stated that there was no animosity of the deceased with the appellants and rather the relationship was very cordial. We have also found that there is nothing on record to show any motive or intention on the part of the appellants to join the accused Ramjan in the commission of the offence. 27. Though Section 34 of the IPC is one of the provisions under which the appellants were charged and convicted, to bring in the aspect of Section 34 of the IPC, there is a requirement to establish a pre-concert amongst the accused persons and a meeting of minds so that a common intention could be developed to commit a particular offence. In the instant case, the evidence on record would show that on the fateful evening, accused Ramjan had come to the house of the deceased and told him that the present appellants had called him to his house. The place of occurrence, as would be evident from the deposition of PW 1 and PW 6 is however not inside the house of the appellants but the courtyard. 28. The medical evidence regarding the injuries is consistent with the ocular evidence that the stab injuries were inflicted by a Bujali by accused Ramjan. The place of occurrence, as would be evident from the deposition of PW 1 and PW 6 is however not inside the house of the appellants but the courtyard. 28. The medical evidence regarding the injuries is consistent with the ocular evidence that the stab injuries were inflicted by a Bujali by accused Ramjan. Though PW 1 and PW 6 had also deposed that accused Arman was seen taking out the Bujali from the chest of the deceased, the said aspect, perhaps cannot be a material to lead to a conclusion beyond all reasonable doubt that the said appellant was also involved in causing the stab injury and consequential death of the deceased. 29. So far as the appellant Lukman is concerned, there is no allegation worth its name against him. The only allegation, as made by the PW 6 is that he was holding her father. We have also examined the statement made by PW 6 in her statement before the Police in which she had stated that appellant Lukman was found alongside her father. 30. A criminal case proceeds on the foundation that an accused person is innocent unless proved guilty beyond all reasonable doubt. Of course, the doubt has to be a reasonable doubt and not fanciful doubts or lingering suspicion. In the instant case, the materials which have been discussed above would not be sufficient to come to a conclusion that the appellants had any intention to kill the deceased or were a part of the commission of the offence. 31. The only aspect which would remain is with regard to the suspicion upon the appellants towards their complicity with the offence in question. The question therefore arises is as to whether a conviction can be made only on the basis of suspicion. The answer obviously has to be negative as an accused is deemed innocent unless proved to be guilty beyond all reasonable doubt. The doubt, as such, has to be reasonable and not fanciful or imaginary. At this stage, it would be beneficial to refer to the case of Sujit Biswas Vs State of Assam reported in (2013) 12 SCC 406 wherein the following has been laid down: “13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be’ proved, and something that `will be proved’. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be’ proved, and something that `will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be’ and `must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be’ true and `must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be’ true and `must be’ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.” 32. We have also noticed that so far as the role of the appellant Arman in pulling out the dagger from the deceased is concerned, the same can also be seen to be an attempt to save the deceased. This view is a possible view inasmuch as, the present appellants did not flee from the place of occurrence and as observed above, there are clear materials on record that the appellants had very cordial relationship with the deceased family. It is a settled principle in criminal jurisprudence that when two views are possible, the one pointing to the innocence of the accused should be adopted. It is a settled principle in criminal jurisprudence that when two views are possible, the one pointing to the innocence of the accused should be adopted. In this context, one may gainfully refer to the case of the Hon’ble Supreme Court of Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773 , wherein it was observed as under: "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.” 33. In view of the aforesaid facts and circumstances, we are of the considered opinion that the materials in this case would not be sufficient to come to a conclusion of guilt and that the same has been proved beyond all reasonable doubt. We are of the opinion that the benefit of doubt is to be given to the appellant. Accordingly, we set aside the impugned judgment dated 16.12.2023 and order dated 20.12.2023 passed by the learned Sessions Judge, Cachar at Silchar in Sessions Case No. 125/2018, by which the appellants, namely, Arman Ali and Lukman Ali are convicted under Sections 302 / 34 of the Indian Penal Code. The appellants are accordingly directed to be released forthwith unless they are wanted in any other case. It is clarified that the present interference is only qua the two appellants. 34. The appeal accordingly stands allowed. 35. Send back the LCRs.