SADEK ALI @ MD. SADEK Vs. STATE OF ASSAM

JUDGEMENT

(1.) An inept investigation or a scripted enquiry, both are fatal to criminal prosecution; but the latter has lethal consequences when there is a possibility of totally innocent persons being crucified. In the present case 16 persons were charge-sheeted as accused, of which one died during the trial. Out of the remaining, 12 were convicted and sentenced under Ss. 147, 341, 326, 307, 323 and 302 read with Sec. 149 of the Indian Penal Code, 1860 [For brevity, 'IPC']. Eighteen witnesses were examined before the trial court, of which six were eyewitnesses: one disbelieved by the trial court and the High Court. The defense examined two witnesses and denied their culpability. The appellants are the convicted accused, two of whom have passed away.

(2.) Ms. Vibha Datta Makhija, learned Senior Counsel for some of the appellants, emphasized that though a GD entry was made and immediately police went to the place of occurrence (P.O) the FIR was registered after three days on the written complaint of PW1 naming all the accused: clearly making the arraignment after due deliberation. The investigation was commenced on the GD entry, but the prosecution is based on the FIR, which was pursuant to another GD entry. The eyewitnesses are said to be wholly unreliable, there being inconsistencies in their own narration and amongst themselves. The deposition regarding the overt acts is disparate and the injuries were never compared with the weapons, and they were also inconsistent with the post-mortem report. There is no recovery of weapons and even the seized weapons were never sent for forensic analysis. There was no proof regarding the injuries suffered by the so-called injured witnesses, making their very presence at the P.O doubtful. The learned Senior Counsel would also point out that no statements under Sec. 161, Cr. P.C. were taken from the witnesses paraded before Court and the statements under Sec. 164, Cr. P.C were recorded far later. The learned Counsel appearing for the other appellants adopted the arguments raised by the learned Senior Counsel.

(3.) Mr. Chinmoy Sharma learned Senior AAG appearing for the respondent-State vehemently argued that there were five eyewitnesses, believed concurrently by the trial court and the High Court. The eyewitnesses remained unshaken in cross-examination. The Investigating Officer (IO-PW18) spoke of the injury suffered by PW14, one of the injured eyewitnesses; his statement having been recorded at a hospital. The investigation had proceeded based on the GD entry and the High Court correctly found the same to be the first information. The eyewitnesses who were accompanying the deceased at the time of the incident had run away from the P.O, out of fear for their lives, the concerted attack having been made by 16 persons carrying deadly weapons. The other witnesses who came to the P.O immediately after the attack fully corroborated the eyewitnesses. The postmortem report indicated the death having been caused from injuries inflicted by sharp cutting weapons from different directions some of which were bone deep and the others impacting vital organs like the brain and lung. The evidence led at the trial, according to the learned Senior Counsel, was sufficient to find the accused guilty of the offences and there is no reason to upset the findings.