KAYED ALI Vs. MOIZUDDIN

JUDGEMENT

(1.) This appeal is directed against the judgment and order passed by the Gauhati High Court which has acquitted the Respondents from the charge under Section 302 Indian Penal Code etc. It is contended that the appeal of the Respondents who were convicted by the trial court, has been allowed by the High Court on a question which did not arise. It is contended that the judgment of the High Court is perverse.

(2.) The occurrence in question took place on 15.2.1986 at about 5. 00 P. M. when the informant Kayed Ali (Public Witness -2) was dragged out of his house by Kalim Uddin and some other Respondents herein and taken to his field where he was asked to identify the boundaries of the field, which he could not tell and said that the boundaries could be pointed out only by his father or grand father. It was at this stage that Moizuddin (Respondent No. 1) assaulted him with a lathi while Azimuddin (Respondent No. 7) inflicted injury on his abdomen. His mother Molicha Bibi came running to the spot and pleaded with them not to assault her son but she, too, was assaulted. While Moizuddin assaulted Molicha Bibi with lathi, Azimuddin gave a spear blow on the abdomen of Molicha Bibi. Another blow was given to Mongia Mia who was the uncle of the informant. When he fell down, he was assaulted by Respondent Nos. 4 and 6.

(3.) F. I. R. of this incident was lodged on the next day on 16.2.1986 at 9. 00 A. M. at Police Station Barpeta. In the FIR, 17 persons were named but a charge sheet, after due investigation, was submitted against 15 persons who were tried for offences under Sections 148, 302/149, 323/149 and 324/149 as Molicha Bibi and Mongia Mia had, in the meantime, succumbed to their injuries. The Sessions Judge convicted seven persons and acquitted rest of the accused. Those seven persons who are the Respondents here had filed an appeal in the High Court which was allowed by the impugned judgment and all of them have been acquitted on the only ground that the identity of the Respondents had not been proved or established. The High Court observed that although the incident was said to have been witnessed by four persons, namely, Public Witness -1, Public Witness -2, Public Witness -6 and Public Witness -7, it would not discuss their evidence in detail inasmuch as the case could be disposed of on the fundamental question relating to the identity of the accused. The High Court observed as under: there were as many as 15 accused. In the FIR itself 17 accused were mentioned. It was further stated in the FIR that many others were involved in the crime. In the FIR only the names of the various accused have been mentioned but their place of residence have not been mentioned. In the trial court also each and every accused was not identified in the manner as required to be done. Public witness -2 also did not make any statement in his deposition as to the identification of the accused. No attempt was made on behalf of the prosecution to identify each and every accused. He is the author of the FIR. In the FIR a long list of the alleged perpetrators of the crime was appended. Nothing has been stated in the FIR as to the identity of the accused. Equally there is even not a single whisper in the evidence of the Public witness s 1,2,6 and 7 as to the names of the parents of the Appellants and the other actual perpetrators of the crime of their place of residence. True, all these witnesses attributed various overt acts to various persons having the names similar to those of the accused and the Appellants. But nothing has been mentioned as to the names of the parents of the Appellants or the place of their residence. No attempt has been made on behalf of the prosecution to ask these eyewitnesses to identify each of the accused or Appellants in the dock by name and face. It must be mentioned herein that In the world there may be thousands of persons having same name. Therefore, identification of the offenders is most important in a criminal trial. Therefore, it is not sufficient on the part of the prosecution to get statements through the witnesses that certain persons having names similar to those of the accused committed the crimes in question. They are to be identified only by face in the dock in course of the trial provided the miscreants are known to the witnesses. In the absence of any such evidence of identification, it is impossible on our part to sustain the conviction of the Appellants. We, have also considered as to whether the case can be remanded back to the trial court on the question of identification of the offenders. But after passage of such a long time such. attempt would be absolutely farce and mockery. "