MD SARIFUDDIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgment dated 23.9.94 passed by the learned Addl. Sessions Judge, Nowgong in Sessions Case No. 128 (N-H)/91, convicting four appellants, namely, Sarifuddin, Nazmul Haque, Kamaruddin and Nurul Haque under Sections 302/34 IPC and sentencing them thereunder to suffer R.I of life and to pay a fine of Rs. 500/- each, in default, to suffer R.I. for further one month.

(2.) Prosecution case in short is that, on 24-12-88 at about noon time, PW-3 Moinuddin lodged a written complaint at Morajar PS alleging, intealia, that on that very day at about 10 AM when Tota Mia (since deceased) was returning to his home afte r visiting the house of his material grand father Abdul Sattar, some miscreants assaulted him with lethal weapons like dao, dagger etc. near the southern side of Karaiyani Mosque and seriously injured him. It was further alleged in the said complaint that the condition of the victim was extremely critical. On the basis of the said information, an FIR under Sections 341/326 IPC was registered, and subsequently, as the deceased succumbed on his injuries, Section 302 IPC was also added to this case. After usual investigation, police submitted charge sheet against the 4 appellants for the offence under Sec. 302/34 IPC. In course of time, the case was committed to the Court of learned Addl. Sessions Judge. On perusal of the materials on record, learned trial Court framed a charge against the appellants and another accused Badrul Haque (since acquitted) under Sec. 302 read with 34 IPC. The appellants including the aforesaid accused pleaded not guilty to the said charge. In all, 8 PWS were examined on behalf of the prosecution, but none was examined on behalf of the defence. The version of the appellants before the learned trial Court was of complete denial of the prosecution story as alleged ugainst them.

(3.) We have heard Mr. D.N. Choudhury, learned counsel for the appellant as well as Mrs. K. Deka, learned Public Prosecutor, Assam. As already stated, IPW-3 Moinuddin is the informant in this case. He is admittedly not an eye witness. His evidence is of not much important, except in one respect that when he came to the spot along with the police officer, the deceased was till then alive and was able to speak a few words and at that time the deceased allegedly made a dying declaration stating that Nazmul Haque @ Thakur Chand, Md. Nurul Haque @ Kala Raja, Kamaruddin, Sarifuddin and Badrul Haque had assaulted the deceased with dao, dagger etc. This witness further stated that the said dying declaration was recorded by the Investigating Officer in his presence. However, from the dying declaration, said to have been made by the deceased, it appears that only the appellant Nos. 3 and 1 have been implicated in this case amongst the accused who faced the trial. The deceased did not implicate the other appellants or other accused. Therefore, so far as the dying declaration of the deceased is concerned, with regard to the two appellants, we will express our views a little later.