RUBUL ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) These appeals by 3(three) appellants, who have been convicted by the learned Sessions Judge, Nalbari, vide judgment dated 29.05.2012 passed in Sessions Case No.100/2006, under Section 302 IPC in aid of Section 34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- each and in default to suffer rigorous imprisonment for a further period of 2(two) months, while acquitting them from the charge framed under Section 449/34 IPC.

(2.) A criminal investigation was set in motion on lodging of a first information report (FIR) on 28.08.2005 by Md. Sarfu Ali, alleging that at about 10.30 night on that date his co-villagers Md. Paddis Ali, (who is not the appellant in the present appeals), Md. Kandura Ali, Md. Asmat Ali and Md. Rubul Ali (appellants in the present appeals) entered their house and stabbed his elder brother Bakharu Ali in the abdomen with a sharp weapon i.e. dagger, causing grievous injuries to him, apart from causing grievous injuries to Nur Islam (who has not been examined as witness). Based on the said FIR, Barama P.S. Case No.61/2005 under Section 448/326/34 IPC was initially registered and thereafter after the death of Bakharu Ali, Section 302 IPC was added. During investigation the police visited the place of occurrence, got Nur Islam examined by the doctor for the injuries suffered by him, recorded the statements of the witnesses, who are acquainted with the facts and circumstances of the case, under Section 161 Cr.P.C, seized sheath of a dagger (Ext.-2), conducted the inquest and sent the dead body of Bakharu Ali for post mortem examination. On completion of the investigation the police submitted the charge-sheet against the appellants and also Paddis Ali under Section 323/307/302/34 IPC. The offence alleged being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Nalbari, vide order dated 05.12.2006 committed the case for trial by the Court of Sessions and accordingly Sessions Case No.100/2006 has been registered and numbered. The learned Sessions Judge, Nalbari on 06.03.2007 framed the charge against all the appellants and also Md. Paddis Ali under Section 449/34 IPC and 302/34 IPC, which charges when read over and explained to the accused appellants, they denied the same and claimed to be tried. Hence the trial commenced.

(3.) During trial the prosecution in order to bring home the charges framed against the appellants, examined 12 witnesses, namely, Md. Chander Ali (PW-1); Md. Nasir Ali (PW-2); Md. Nuruddin Ali (PW-3), eye witness; Md. Sarfu Ali (PW-4), first informant; Md. Mojammil Ali (PW-5); Dr. Prabin Chandra Choudhury (PW-6), who conducted the autopsy on the dead body of Bakharu; Dr. Manoranjan Sarma (PW-7), who medically examined the injured Nur Islam and submitted the injury report (Ext.-4); Mustt. Amila Bibi (PW-8), a co-villager and who is also an eye witness; Md. Samir Ali (PW-9), the brother of the deceased, another witness to the occurrence; Md. Samser Ali (PW-10); Md. Nabin Ali (PW-11) and Sri Bhuban Gohain (PW-12), the Investigating Officer. PWs-1, 2 and 5, however, have been declared as hostile, they having not supported the prosecution case. After recording the depositions of prosecution witnesses, who have been duly cross-examined by the defence, the statements of the accused appellants were recorded under Section 313 Cr.P.C. The defence has also examined one defence witness, namely, Md. Paddis Ali himself.