SUBED ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) The conviction of the appellants under Section 302/34 of the Indian Penal Code (for short, "I.P.C.") by the Sessions Judge, North Lakhimpur, has been affirmed by the High Court, sentencing them to life imprisonment along with fine and a default stipulation. Thus, the present appeal by the appellants.

(2.) The prosecution alleged that the two deceased, Abdul Motin and Abdul Barek were assaulted on 05.08.2005 at about 06.00 PM while they were returning from the market on bicycles along with others. Abdul Barek died on the spot. Abdul Motin died in the hospital during the course of treatment the same night. Originally there were five named accused persons. Accused nos.3 and 5 have been acquitted giving them the benefit of doubt. We are not informed of any appeal preferred against their acquittals.

(3.) Shri Gaurav Agrawal, learned counsel for the appellants, submitted that if two of the accused have been acquitted giving them the benefit of doubt on basis of the same evidence, the conviction of the appellants is unjustified and they too are entitled to acquittal on benefit of doubt. There are several inconsistencies in the evidence of the eye witnesses P.Ws. 5, 6, 7 and 9. The occurrence had taken place after darkness had engulfed, making identification doubtful relying on the cross examination of P.W.6. P.W.1 deposed that he had been informed by Babulal and Asgar Ali that the appellants were the assailants. The prosecution has not examined either of them. The eye witnesses have deposed of assault upon the two deceased by appellants nos.2 and 3 only. There is no allegation that appellant no. 1 was armed in any manner or that he also assaulted any one of the two deceased. Thus, there is no material to infer common intention with regard to appellant no. 1. Appellants nos.2 and 3 are therefore individually liable for their respective assault upon the two deceased. The recoveries attributed to the appellants has been disbelieved. It was lastly submitted that no charge had been framed under Section 34 IPC.