GOLBAR HUSSAIN & ORS Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is preferred by the appellants against the judgment and order dated 31.08.2012 passed by the Gauhati High Court in Criminal Appeal No.165 of 2004 whereby the High Court has allowed the appeal filed by the State and convicted all the appellants under Section 302 read with Section 149 of the Indian Penal Code ("IPC") and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- each.

(2.) The brief facts of the case, as per the prosecution story, are that on 5.1.2001 at about 6:10 p.m. at Chapra Beparipara which is under Chapar Police Station, the accused persons formed an unlawful assembly and in prosecution of the common object of such assembly, committed the murder of Hasen Ali. Amir Hussain, son of the deceased (PW-3) lodged an Ejahar about the incident at Chapar Police Station on 5.1.2001 at about 10:00 p.m. On receipt of the Ejahar, F.I.R. No.3/2001 was registered by Chapar Police Station and started investigation. The police arrived at the place of occurrence and called the Executive Magistrate who prepared the inquest on the dead body and the inquest was sent for post-mortem examination to Dhubri Civil Hospital. The police found one bag containing one dagger and two hand-made bombs lying near the dead body. After investigation, charge-sheet was submitted against the accused persons under Sections 147, 148, 149, 341 and 302 of the IPC. On 29.6.2001, the said charge-sheet was received by the Chief Judicial Magistrate, Dhubri. Since the offence was triable exclusively by the Court of Sessions, the Chief Judicial Magistrate by his order dated 15.3.2002 committed the case to the Court of Sessions for trial. During the course of trial the prosecution examined 10 witnesses to bring home the charges levelled against the appellants. The defense adduced no evidence and took a plea of total denial.

(3.) The Trial Court on a careful scrutiny of the evidence found that the statements of PW-4 & PW-5 were contradictory which created doubt as to the presence of these two witnesses at the place of occurrence. Jamaluddin (PW-1) deposed that about 6 months ago, when he was returning from the Pharmacy, he met Shah Alam who said that his brother had been killed in the market, but he did not mention the name of any person. The incident took place in the market place where there were about 50 shops on both sides of the road. The Trial Court observed that if accused Golbar and Abu Sama appeared from the left and right, they must have come out of one of the shops on both sides of the road since PW-4 categorically stated that he had not seen the accused persons on the road while they were going towards the house of the deceased. But none of the shopkeepers, adjacent to the place of occurrence, came forward to depose that any occurrence as stated by PW- 4 & PW-5 had taken place in front of their shops. PW-5 during cross- examination stated that he knew the names of two shopkeepers and they are Sattar and Hazrat Ali. Hazrat Ali (PW-2) did not state that the occurrence took place in front of his shop. PW-5 further stated during cross examination that the deceased was an accused in a murder case and had no explanation as to whether the deceased would move around having bombs and other weapons with him. The Trial Court drew the conclusion that the seized articles were belonging to the deceased persons. On analysis of the evidence the Trial Court decided that the evidence of PW-4 and PW-5 was full of contradictions on material particulars and as such the testimony of these witnesses did not inspire any confidence. Under the circumstances, the uncorroborated testimony of PW-4 and PW-5 by some independent eye witness could not be accepted to warrant the conviction of the accused persons.