ABDUL MOTLEB Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE appellants are aggrieved by their conviction under section 302/201/149 of the Indian Penal Code ('the Code/IPC') and the sentence of imprisonment for life together with a fine of Rs. 10,000 each, in default, rigorous imprisonment for another two years for the offence under section 302/149, IPC as well as the sentence of rigorous imprisonment for a period of three years for the offence under section 201/149, IPC as recorded in the judgment and order dated 15.2.2005 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 22 of 2001. Both the sentences were ordered to run concurrently.

(2.) WE have heard Mr. A.S. Choudhury, senior advocate and Mr. M.H. Ahmed, advocate for the appellants and Mr. K.A. Majumder, learned Public Prosecutor, Assam, for the state.

(3.) THE learned counsel for the appellants have persuasively argued that as the evidence on record does not establish the ingredients of section 149, IPC, in absence of the proof of individual roles of the appellants in the alleged assaults, their conviction as recorded is wholly unsustainable in law and on facts and is liable to be interfered with. Asserting want of proof of motive of the appellants in committing the alleged offence, the learned counsel have argued that the evidence of the only eye witness Abdul Hakim, PW3 is deficient in material particulars and insufficient to establish the complicity of all the accused -appellants. The evidence of PW2 and PW7 who endeavoured to reproduce the disclosures made by the deceased Abu Taher implicating the accused -appellants has been dismissed on the ground that their testimony is wholly incompatible with that of PW9 rendering their presence at the place of occurrence highly doubtful. Moreover, if the version of the eye witness, PW3 is accepted having regard to the injuries sustained by him, he by no means could have been in a state to have noticed the assaults on the deceased person.