SAHAMAT ALI AND ORS. Vs. STATE OF ASSAM

JUDGEMENT

(1.) WE are confronted in this appeal with conviction of the three appellants under Sections 302/149, 324/149 and 148 of the Penal Code. As the minimum sentence for offence under Section 302 is in carceration for life behind iron bars and stone walls, we have to be extremely cautious to see if the guilt has been brought home beyond reasonable doubt, more so, when aid of Section 149 has been taken to fasten guilt on the appellants.

(2.) THE occurrence which had seen the death of Jahar Ali and injuries on the person of P. W. 2 Murmui Ali had taken place on 5 -1 -1969. According to prosecution on that day these two persons had gone to Dalahat at about 8/9 a. m. to sell cows in the Sunday Bazar. When they reached near the house of P. W. 3 Lodha Munda, it is alleged that two persons named Hara and Bhuyan alias Hasan Ali armed with dao prevented them from proceeding further, 10/12 persons were also seen nearby. Out of fear Jahar and Murmuj ran towards the house of p. W. 3 and after entering inside the house closed the door, p, W. 3 was then there but left soon after. The chasers cut the wall of the house and entered inside, whereafter Jahar and Murmuj were assaulted, part of the assault on Jahar was also in the courtyard where he had been dragged, P. W. 3 who had left his house with his wife and children reported the matter first to the panchayat President then to the S. D.O., North Lakhimpur, who came along with police to the place of occurrence. On arrival at the scene at about 11 a. m. the offence having taken place at about 10 a. m., the police found three injured persons - the third being P. W, 11 Isamuddin. Steps were taken to send the injured for treatment whereafter the ejahar was lodged. Jahar succumbed to the injury in the hospital, whereas P. W. 2 had to remain confined according to him for 5/6 days. In the ejahar lodged at about 5 p. m. 16 persons were specifically named and it was added that there were three others. Names of three appellants before us are to be found in the ejahar. After completion of investigation, 17 persons were booked for trial of whom the learned Sessions Judge acquitted fourteen and convicted the three appellants as aforesaid. The defence of all the accused was one of complete denial, to which a plea of alibi was added by appellant Alimuddin alias Alou.

(3.) THE last two witnesses are chance witnesses. According to P. W. 5 while going to bazar he saw appellant Samad and many others surrounding the house of Lodha. He also saw appellant Bhuyan and one Hara cutting the wall of the house whereafter Samad was seen giving jathi blow on the stomach of Jahar when the victim shouted "Momai", Thereafter Alo alias Alimuddin also gave a jathi blow and this time Jahar cried out "I am done to death" Jahar was: thereafter dragged to the courtyard where he was given dao blows. Murmui was also assaulted by these people, A glance at the sketch map (Ext. 7) shows that the path by which p. w. 5 must have been travelling lies to the West of Lodha's house and the wall which was fully damaged is to the east of the house, and the two partially damage ed walls are to the north. As such, if assaults on Jahar had taken place inside the house of Lodha Munda, this witness could not have seen them. From the evidence of P W -2 it transpires that the assaults both on Jahar and himself were mainly inside the house, P. W -5 therefore could not have seen the actual assaults. The witness is brother -in -law of deceased Jahar and Murmui is his uncle. The bad blood between the parties, to which reference shall be made when dealing with evidence of PW 2, and the fact that PW 5 is a chance witness and showed anxiety to testify about matters which he could not have seen go to make him an unreliable witness. Had his presence been testified by any other witness the matter would have been perhaps different. Even the Investigating Officer examined him for the first time on 18 -1 -1969 for which delay there is no explanation. Because of all these we have to exclude his evidence in determining the culpability of the appellants. P. W. 7 stands almost on the same footing. He too is a chance witness and closely related to the complainant side. His evidence is of omnibus nature and he was not in a position to say as to who had assaulted whom, where and with what weapon. The investigating agency examined him as well for the first time on 18 -1 -1969.